Trump will mimic Harvey Weinstein's successful appeal to challenge his own sexual assault conviction on Friday, but it won't be that easy.

• Trump's lawyers will fight his 2023 conviction on sexual assault and defamation charges in Manhattan on Friday.

• They claim the jury misheard the other accusers, an appeals strategy that worked in the Harvey Weinstein case.

• Weinstein's lawyers, however, point out that Trump is in federal court and the rules there will work against him.

Donald Trump is sending a lawyer into another courtroom on Friday to try to overturn the Manhattan civil case that found the former president is a rapist.

According to court documents, the oral arguments will have a clear focus on Harvey Weinstein.

With the presidential election in mind, Trump's lawyers are working diligently to clear the Republican candidate's criminal record and clean up his lost court cases.

On Friday, attorney D. John Sauer is scheduled to appear in a federal appeals court in Manhattan, where he will challenge a 2023 jury's verdict that found the former president guilty of defaming and sexually assaulting writer E. Jean Carroll. The judge presiding over the trial later concluded that “Trump 'raped' her, as many people understand the word 'rape.'”

Before a three-judge panel of the Second Circuit Court of Appeals, Sauer will argue that the jury in Carroll's trial should never have heard evidence of other alleged sexual assaults.

That evidence included the Access Hollywood “Grab 'Em” tape and the testimony of two women who told the jury that Trump sexually assaulted them, once on an airplane in the mid-1970s and once at Mar-a-Lago in 2005.

It's a strategy that worked in Weinstein's appeal.

In April, New York State's Supreme Court overturned Weinstein's 2020 sex crimes conviction in Manhattan in a 4-3 decision, finding that the trial judge improperly allowed testimony from three female accusers who were not part of the prosecution. (Weinstein remains incarcerated in New York pending retrial; he is also serving a 16-year sentence for a rape conviction in Los Angeles, which he has also appealed.)

But the lawyers who won Weinstein's appeal told Business Insider that what worked for their client probably wouldn't work for Trump.

That's because Weinstein's jury sat in a New York state criminal court, where longstanding rules of evidence severely limit so-called proof of prior crimes, the disgraced Hollywood mogul's lawyers noted.

A federal court is a completely different place, they said – there Trump would likely find that the rules of evidence were insurmountable against him.

“It's not the same comparison,” said Barry Kamins, an appellate attorney in the Weinstein case and a former state Supreme Court judge in Brooklyn.

Federal court rules have allowed evidence of other sexual assaults to be heard in civil sexual assault cases since the mid-1990s, says Kamins, who now works at Aidala, Bertuna and Kamins.

“It's funny, but Trump would have been much better off in state court than in federal court. Maybe that's why they took the case there,” Kamins said of Carroll's lawyers.

The architect of the law that Carroll used to sue Trump agreed.

Marci Hamilton, who heads Child USA, an advocacy group for sexual abuse victims and helped draft the New York law, said that in civil cases, presenting witnesses can “establish a pattern.”

“That's basically what happens – especially when there's an offender with multiple alleged victims,” ​​she said. “That pattern makes a big difference in explaining to the jury exactly who this person was who did this and how they went about it.”

Trump's lawyers use the Weinstein argument

The appeal concerns the first of two lawsuits in which Carroll took action against Trump, which she brought under New York State's Adult Survivors Act.

The law, passed in the wake of reports of Weinstein's sexual assault and the #MeToo movement, opened a one-year window for accusers to file sexual misconduct claims that would otherwise be time-barred.

Carroll accused Trump of sexually assaulting her in a dressing room at Bergdorf Goodman's department store in the mid-1990s. The trial featured harsh testimony from Carroll herself and two friends who said she had simultaneously told them that Trump had sexually assaulted her.

U.S. District Judge Lewis Kaplan also allowed testimony from Jessica Leeds and Natasha Stoynoff, whose allegations were not part of the lawsuit.

Leeds described being forcibly groped on an airplane 20 years before Trump sexually assaulted Carroll. Stoynoff, a journalist, described a similar attack during an interview at Mar-a-Lago. That attack took place in 2005, she testified, 20 years after the attack on Carroll and around the time Trump bragged on the Access Hollywood video about grabbing women's genitals.

Similar testimony led to the failure of the Weinstein case.

The New York State Supreme Court ruled that the three prosecution witnesses who had previously alleged misconduct – the trio who testified that Weinstein sexually abused them but whose allegations were not part of the prosecution – should never have taken the stand.

In Trump's appeal brief, his lawyers argue that Leeds and Stoynoff's testimony and the Access Hollywood tape should never have been admitted at trial, citing a federal law similar to the state law that blocked prosecutions against Weinstein.

In particular, the jury should never have heard Leeds' highly biased testimony in which she recalled Trump telling her, “You're that cunt from the plane,” and in which Stoynoff said Trump insisted “we're going to have an affair,” Trump's lawyers argued in the brief.

Diane Kiesel, a professor at New York Law School and former state court judge, told Business Insider she believes the evidence meets the criteria for inclusion in the trial. The Access Hollywood tape and the testimony of Leeds and Stoynoff helped prove Trump's “motive, intent and opportunity” in his encounter with Carroll, as federal evidence rules allow, she said.

“The fact that E. Jean Carroll says, 'He did that to me at Bergdorf's.' And he says, 'You can do that to women anytime, they'll let you do it,'” she said. “And then two other women from 50 years ago come out of hiding and say he did the exact same thing — to me, that's a direct question of motive, intent.”

Judge Kaplan wrote in his ruling that the evidence was also admitted into the trial under other federal procedural rules, including rules that allow testimony about “similar acts” in sexual assault cases.

“As her testimony shows, Trump repeatedly lunged at a woman in a semi-public location, pressed his body against her, kissed her, and sexually touched her without her consent. He later categorically denied the allegations and stated that the accuser was too unattractive for him to attack her,” Carroll's lawyers wrote in a brief.

Civil cases like Carroll’s have different standards

Attending Friday's court battle will be Carroll's attorney Roberta Kaplan, who oversaw the two verdicts in Carroll's favor. In the May 2023 verdict, the jury found Trump guilty of sexual assault and defamation and awarded Carroll $5 million in damages. In the second trial earlier this year, a separate jury ruled that Trump owed Carroll an additional $83 million in defamation damages.

Kaplan (who is not related to the trial judge) will face Sauer, who recently won a resounding victory for Trump in the U.S. Supreme Court, which granted him broad immunity in the criminal election interference case against him.

Trump's best chance in Friday's appeal may be to continue to argue that the other two accusers who testified, Leeds and Stroynoff, described assaults that were far too distant in time from Carroll's assaults to have been significant, Weinstein's lawyer Arthur Aidala said.

While the federal rules of evidence for civil sexual assault cases are much broader, a judge still cannot go too far, he said.

“It has to be reasonable, and the appellate court can take into account the time gap between the plaintiff's testimony and those 'inclination' witnesses,” he said.

Crucially, the jury in the Carroll case did not have to conclude that Trump sexually abused Carroll “beyond a reasonable doubt” – which is standard in criminal trials.

Instead, they should have found that it was “more likely than not” that Trump sexually abused Carroll – a far more common standard in civil cases.

Even if the appeals court concludes that some of the testimony at trial should not have reached the jury, the standard provides leeway to uphold the verdict anyway, said Hamilton, the architect of the Adult Survivors Act.

“It's not unusual for defendants in a civil case to use criminal law arguments to support their case,” she said. “But in the end, it's just comparing apples and oranges. It's not the same thing.”

Read the original article on Business Insider