Time's Up for Harvey Weinstein

By Mark Joseph Stern, Slate

02 May 18

Why Ashley Judd’s lawsuit against the film executive is such a brilliant gambit.

n Monday, Ashley Judd sued disgraced Hollywood mogul Harvey Weinstein for his grotesque behavior toward her more than two decades ago. Although Judd’s expertly crafted suit centers around Weinstein’s alleged efforts to assault her in a hotel room, it is not exclusively about his purported sexual misconduct. Instead, the complaint, filed by renowned Gibson Dunn attorney Theodore Boutrous, deftly weaves that episode into a compelling theory of economic wrongdoing, accusing Weinstein of attempting to harm her career after she evaded his sexual predation.

Plenty of women have been professionally disadvantaged by sexist, exploitative men. But far too few are able to sue in court given the difficulty of producing clear and convincing evidence. Luckily for Judd, she has witnesses to Weinstein’s reported wrongdoing. And her extremely plausible accusations could cost her alleged tormentor millions in damages.

The events at the heart of Judd’s lawsuit occurred in late 1996 or early 1997, when Weinstein—then part owner of the production company Miramax—was at the height of his power. The film executive invited Judd, whose career was just getting off the ground, to the Peninsula Hotel in Los Angeles to discuss possible film roles. When she arrived, Judd was directed to Weinstein’s private hotel room, where he allegedly greeted her in a bathrobe, alone. According to the lawsuit, he then asked if he could give her a massage. She declined. He then allegedly asked her to watch him shower. Once again, she declined. Feeling “cornered,” Judd “engaged in a mock bargain,” joking that he could only “touch her” after she won an Oscar for one of his movies. “When you get nominated,” Weinstein insisted. “No, when I win,” Judd pushed back. She then “fled the scene.”

Judd ran to the lobby, where her father was waiting. He told her it looked like something “devastating” had happened to her, and she told him the story. Soon after, she told her mother as well. Her suit alleges that Weinstein continued “to lord that traumatic moment” over her, telling her at public events that she should “remember their agreement.”

As these grotesque reminders suggest, Weinstein had not forgotten Judd’s refusal to comply with his antagonistic sexual demands. About a year later, after Judd had starred in the hit film Kiss the Girls, Peter Jackson and his partner Fran Walsh invited her to a private meeting. They showed Judd detailed plans for their upcoming trilogy, The Lord of the Rings, and asked which of two potential roles she would prefer to play, indicating their clear intent to cast her. After conferring with Viggo Mortensen, who was also asked to star in the movies, Judd decided to accept the offer.

But there was a hitch: At that point, Miramax held the rights to the Lord of the Rings films. When Jackson and Walsh expressed their enthusiasm for casting Judd, Weinstein and his associates told them that Judd was “a nightmare to work with” and should be avoided “at all costs.” They also asserted that Miramax had “bad experiences” with Judd in the past. This statement appears to be demonstrably false: Judd had previously acted in exactly one Miramax film, Smoke, appearing in a small role that required just two days of shooting; her work on the film spurred no known complaints. Indeed, Miramax would go on to cast Judd in two future movies, undercutting the studio’s earlier complaint about her professionalism. (By that point, Judd was a bankable star, no longer a relative newcomer whose professional development could be thwarted with a rumor.)

Eventually, New Line bought the rights to The Lord of the Rings from Miramax. But Jackson and Walsh still decided not to cast Judd—expressly because, Jackson later recalled, they believed Weinstein’s claim about her poor behavior. “At the time,” Jackson said in December 2017, “we had no reason to question what [Miramax] was telling us—but in hindsight, I realize that this was very likely the Miramax smear campaign in full swing.” The director suspected that “we were fed false information” about Judd and, “as a direct result,” her name was removed from the films’ casting list.

The Lord of the Rings went on to gross $2.5 billion while winning multiple Oscars. Its successor trilogy, The Hobbit, was also a box-office smash, though Jackson did not consider Judd for any roles for the same reason he excluded her from the earlier films. Her career still blossomed, but not to the extent that it might have had she starred in the massively popular trilogy.

As a result of these events, Judd is suing Weinstein under California law for four separate but related claims. First, she’s suing him for slander, accusing Weinstein of maliciously spreading false information about her professionalism. She’s also suing him for engaging in “sexual harassment in professional relationships” by making unwelcome sexual advances then attempting to stymie her career when she resisted them. Judd could probably collect substantial damages from these claims alone.

But Judd’s complaint doesn’t stop with the low-hanging fruit. It also alleges “intentional interference with prospective economic advantage”—in effect, wrongfully depriving her of economic benefit by intentionally torpedoing her professional relationship with Jackson. And it accuses Weinstein of engaging in fraudulent business acts by defaming Judd and retaliating against her in an effort to derail her participation in The Lord of the Rings.

These last two claims are the real heart of the lawsuit. They open up Weinstein to immense damages—both punitive damages and restitution for Judd’s lost business opportunities. Judd is suing Weinstein to recover the money she should have received for starring in Jackson’s trilogy, money she was denied on account of Weinstein’s alleged malign interference. Such claims are typically difficult if not impossible to prove, because the victim rarely has solid evidence that her abuser’s misconduct is the direct cause of her missed economic opportunities. Here, however, Jackson has been eager to go on the record to explain that it was Weinstein’s words alone that informed his decision not to cast Judd for his trilogy. His candor presents an opportunity for the actress to collect significantly more restitution than she would otherwise.

Judd, of course, is already a millionaire, and the primary goal of this litigation isn’t to make her whole financially. Rather, it’s designed to win a moral and political victory. The actress has said that she will donate damages to Time’s Up, which has already raised $20 million for its legal defense fund to help victims who might not have Ted Boutrous on speed dial. Judd’s lawsuit is distinct from the kind of litigation funded by Time’s Up; few other victims will have such unambiguous evidence, famous allies, or massive damages. Judd, for her part, has capitalized on those advantages in an attempt to hold Weinstein accountable. That is her privilege and prerogative, and it is Weinstein’s richly deserved misfortune.

Will Donald Trump Plead the Fifth or Be Subpoenaed?

By Jeffrey Toobin, The New Yorker

02 May 18

 

essage to President Trump: Please take the Fifth.

That appears to be the subtext of the nearly fifty questions, leaked to the press on Monday, that Robert Mueller, the special counsel, reportedly wants to ask the President. The questions, revealed in yet another scoop by the Times’ Michael S. Schmidt, do not appear to be word-for-word recitations of what the prosecutor will ask. Rather, they appear to be summaries of those questions, prepared by the President’s lawyers. But the gist is clear. Mueller seems to suspect that Donald Trump orchestrated an obstruction of justice in order to forestall the F.B.I.’s investigation of his campaign’s possible ties to Russia. Mueller also seems to have questions about the legality of the contacts between people affiliated with the campaign and Russians in the first place.

It’s usually a fool’s game to guess who leaked something, and why; the identity and the motives of journalists’ sources are difficult to fathom, even to the leaker and the leakee. But the message, intentional or not, of these questions is clear: there is no way that Trump should put himself in the position of answering them.

To date, Trump’s public comments about the Mueller investigation have generally fallen into two categories. First, he has repeatedly denounced Mueller’s inquiry as a witch hunt. Second, he has insisted, over and over again, that there was no collusion between his campaign and Russia. He has almost never addressed the specifics of the investigation, and when he has (as Mueller’s questions recognize) he has landed himself in trouble. For example, a central part of a possible obstruction case against Trump involves his decision to fire James Comey, the director of the F.B.I., in May of last year. In the immediate aftermath, the White House put out the explanation that Comey was fired for mishandling the investigation of Hillary Clinton’s e-mails during the 2016 campaign. But, in the following days, Trump made comments to Lester Holt, of NBC News, and to a group of Russian diplomats, in the Oval Office, to the effect that the firing was designed to forestall the Russia investigation—and thus constitutes a possible obstruction of justice.

The leaked questions try to get Trump to explain this contradiction. “What did you mean in your interview with Lester Holt about Mr. Comey and Russia?” one asks. “What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?” another asks. For Trump, there are no good—that is, non-incriminating—answers to these questions. Either the original explanation for the Comey firing was false, or else Trump was lying when he gave the second one. Or, given his lack of self-discipline, he may come up with yet another contradictory explanation. Trump would greet many of Mueller’s questions with his characteristic filibusters, but this practice has limited utility in the face of a disciplined questioner. The President would surely try to run out the clock on an interrogation of limited duration—which his lawyers would insist on—but Mueller and his team would probably have some success in obtaining at least some categorical answers from him. And Trump’s absence of good options for answering questions about the reasons for Comey’s firing would recur in many of the areas of Mueller’s interest.

Any sane lawyer would try at all costs to avoid putting a client in this kind of position. But Trump’s legal team has limited options. In public, Trump and his lawyers have presented the matter of whether he answers Mueller’s questions as one of the President’s choosing. It is not. If negotiations over a voluntary interview break down, Mueller will surely issue a subpoena for the President’s testimony. Trump could fight the issue in court, but Supreme Court precedent, from the Nixon and Clinton eras, suggests that Trump would fail to quash a subpoena for his testimony. The courts would demand that Trump testify. What, then, would Trump’s options be?

There are just two. He could testify, and hope that his answers land him in less trouble than he already faces. Or he could take the Fifth—that is, refuse to answer on the grounds that the answers might incriminate him. This, to be sure, is perilous political ground. The public tends to regard taking the Fifth as an admission of guilt. And Trump himself, in a question surely to be endlessly cited, has said, “If you are innocent, why are you taking the Fifth?” But he has apparently already taken the Fifth in the course of his complex history of civil litigation. And he could present taking the Fifth now as a form of protest against an illegitimate and unfair investigation—a view already shared by a substantial portion of Republicans across the country.

If he took the Fifth, Trump would surely endure a few days of bad press, and his assertion of his rights would become an indelible part of his record as President. But would his approval rating, which has rarely strayed more than a few points north or south of forty per cent, really be hurt? Would his supporters desert him? I doubt it. Opinions about Trump, especially in connection with the Russia investigation, seem fixed and immobile. Mueller’s detailed and fraught questions suggest that the risk in answering them far outweighs the risk of just saying no.