Technically, it’s unlikely they committed defamation, but they deserve the rebukes they’re getting.
Technically, it’s unlikely they committed defamation, but they deserve the rebukes they’re getting.
M y view, extensively explained in March, remains the same: Now-president-elect Trump’s defamation case against George Stephanopoulos — the Democratic Party operative and, if I may be redundant, ABC News anchor — was legally meritless. To make sense of the $16 million settlement ABC News’ parent, Disney, decided to pay Trump (which will hilariously force the “fake news” media to underwrite the yet-to-be-built Trump presidential library), we must conclude that news company was trying to avoid humiliating discovery disclosures and the possibility of losing the jury trial.
Because of extraordinarily burdensome proof standards for defamation lawsuits in the United States, Trump would have had to establish by a preponderance of the evidence that Stephanopoulos’s assertions that Trump had been found “liable for rape” in the E. Jean Carroll case were knowingly false or made with reckless disregard for the truth. Stephanopoulos’s repeated assertions were knowingly sleazy, but they were within the ballpark of accuracy.
I say that because Stephanopoulos relied explicitly, though sloppily, on the reasoning of Judge Lewis Kaplan, the Clinton appointee who presided over the Carroll trials in Manhattan federal court (there were two; we’re mainly dealing with the first one). Judge Kaplan had concluded that the jury’s finding of sexual assault by forcible touching would have satisfied the definition of rape under federal law and the law of several states (albeit not the law of New York, under which the case was tried). We’ll get to all that, but note: In a defamation case, you never even get to questions about the defendant’s knowledge or recklessness unless it is first established that the statement made was false. There are inaccuracies in what Stephanopoulos said, but in essence his point — about what the judge found, construing what the jury found — was not false.
So why settle the case? Mainly to prevent the discovery of correspondence that demonstrates Stephanopoulos’s ABC soapbox is, for all intents and purposes, a Democratic Party propaganda organ. The New York Post reports that Stephanopoulos was admonished repeatedly by his producer not to use the word rape. This and other damaging information was about to come out. Last Friday (December 13), Chief Judge Cecilia M. Altonga of the federal district court in Miami had decreed that Sunday (two days later) would be the deadline for surrendering discovery, with Stephanopoulos then slated to sit for lengthy deposition testimony days later. For Disney and ABC, that concentrated the mind, spurring negotiations and a quick settlement.
There was a non-negligible chance that ABC News and Stephanopoulos would lose at trial. The death knell, as it often is in civil litigation, was the court’s rejection of the defense motion to dismiss the case prior to discovery, meaning the matter could proceed to a jury trial with all the financial risk that entails. Judge Altonga (a Bush-43 appointee) concluded that “a reasonable jury could interpret Stephanopoulos’s statements as defamatory.” I believe she was wrong, but it is obvious that the judge was offended — as any sensible person should be — by Stephanopoulos’s gratuitous repetition of his controversial claim, writing: “Stephanopoulos stated ten times that a jury — or juries — had found plaintiff liable for rape” (Opinion at p. 17, emphasis in original). Just as Carroll strategically brought her defamation case against Trump in New York, Trump strategically brought his defamation case against Stephanopoulos and ABC News in South Florida — a place where he is popular and the press is viewed with disdain. Assuming they’d lose at trial, a successful appeal (which is never a sure thing, no matter how probable I think it would have been) would have taken years. In the interim, the reputational damage to the anchor, the network, and the legacy media generally would have been immense — and ABC News’ ratings are already in the tank thanks to the patently partisan Trump hostility displayed by a pair of its Stephanopoulos wannabes at the September presidential debate.
There were other considerations, too. The litigation decisions were made by the corporate parent, Disney, not by ABC News. ABC News journos may have wanted to fight, but the owner doesn’t want Trump discouraging conservatives and Republicans from buying Disney’s wares; and, if it decides to sell ABC News, Disney doesn’t want a lawsuit against the president of the United States complicating matters. Plus, with Trump having won the election, ABC News is concerned about having White House access in the privileged perch to which it is accustomed.
There is also the point made well by our Charles C. W. Cooke on The Editors early this week: The foundation of the Supreme Court’s media-friendly defamation jurisprudence, New York Times v. Sullivan, is a sandcastle of judicial legislating that might be washed away if the originalist majority on today’s Court got a crack at it. (See my 2021 column on this subject, here.) Given all these stakes, the $16 million settlement — basically, Stephanopoulos’s yearly $15 million salary, with another million tossed in to pay Trump’s legal fees — was reasonably deemed a small price to pay to make ABC’s potential problems go away. Of course, it’s worth a lot more than $16 million to Trump in terms of publicly validating his anti-media narrative.
That doesn’t mean the president-elect had a sound case.
Stephanopoulos’s Nancy Mace Interview
As I detailed when Trumps’s suit was filed in March, Stephanopoulos’s interview of Representative Nancy Mace (R., S.C.) was appalling. Let’s put aside the specter of Stephanopoulos, the leading apologist for Bill Clinton (a documented sexual abuser who has been credibly accused of rape), using journalist E. Jean Carroll’s dubious allegations of rape against Trump in a crude attempt to discredit Mace, a past victim of sexual abuse who happens to be a Trump-supporting Republican. For the most identifiable figure at ABC News, with the formidable fact-checking resources of that organization at his beck and call, to claim in a national broadcast for which he presumably prepared extensively that “judges and two separate juries” had found Trump “liable for rape” would have been inexcusable even if he hadn’t strategically reiterated the assertion’s substance ten times.
It was one judge and one jury whose finding was equivocal; and it was a civil case, and thus incumbent on Stephanopoulos to clarify that Trump had not been criminally convicted of rape, a serious felony. Under the circumstances (especially if it’s true that he was admonished not to use the word rape), ABC News would have suspended the anchor if it had any shame. At a minimum, it should have made him apologize (as a reportedly “Furious George” was forced to do in the settlement). Still, there was nothing new here: Stephanopoulos is a partisan hack; if ABC had respect for our intelligence, it would not portray him as an objective newsman. That Republicans continue to go on his show is baffling — even granting that Representative Mace is an attention hound whose schtick is to mix it up with the other side.
But again, the first proof requirement of a defamation suit is that the statement complained of be false. There were censurable inaccuracies in Stephanopoulos’s statements, and he squalidly pushed the bounds of what rape meant in the context of a factually messy civil trial. Because of his reliance on the judge, however, the statement was not false; and, far from being reckless, Stephanopoulos took pains to rely on the judge’s nuanced conclusions about the jury’s sexual abuse finding.
The First Carroll Trial
Trump’s claim of falsity depends on an assertion he has repeatedly made that is itself inaccurate: To wit, that the jury in the first Carroll trial specifically found that he did not rape Carroll. There was no such finding. To repeat what I explained in March:
As the verdict sheet shows, the jurors were presented with three different torts involving sexual aggression that Carroll claimed Trump had committed against her about 30 years earlier — rape, sexual abuse, and forcible touching. The torts were part of a single civil claim (i.e., Carroll only needed to establish one of them to prevail), and they were listed in descending order of severity: Rape includes sexual abuse and forcible touching; sexual abuse includes forcible touching. Ergo, once the jury found one tort proven, it did not need to consider less serious ones.
The jury was instructed to apply the civil standard of proof, preponderance of the evidence. This is a burden significantly easier to meet than the criminal standard, beyond a reasonable doubt. The distinction is salient because Democrats and other anti-Trumpers have taken to saying Trump was “convicted” of rape or sexual abuse. He wasn’t convicted of anything. It was a civil case in which a small jury (nine people, not twelve) unanimously found that he was liable; he was not found guilty — that’s a finding made in criminal cases.
Under the civil standard, the jury found that Carroll did not prove that Trump had raped her — not that a rape didn’t happen, but that rape wasn’t proved.
Now, you may think didn’t happen versus wasn’t proved is a lawyerly parsing of words. If you do, you should retrace your steps because this whole controversy is about the lawyerly parsing of words. As I elaborated, however, you can’t comprehend what the jury did not find proved unless you factor in the context of what it did find proved:
The jury went on to find that Trump sexually abused Carroll. Consequently, the jury did not need to answer the question of whether Trump forcibly touched Carroll; as the law was presented to them, the jurors could not have found sexual abuse absent finding forcible touching.
At this point, much as I hate to get graphic, it is unavoidable.
Trump did not testify at the trial (we’ll come back to that because it’s important). The jury thus heard only Carroll’s version of events. Now, I happen to think Carroll’s story is weak and essentially uncorroborated. But remember, the issue here is what the jury found (since that’s part of what Stephanopoulos purported to rely on). We must put aside what we may think of Carroll’s account. That’s hard to do, especially with Trump strenuously insisting that the encounter never happened. But the issue here is the jury finding, not our assessment of the probabilities. The jury believed Carroll.
So what did Carroll tell the jury? Here is how I previously described her account (in which she claimed Trump forced her into a position where she could feel but not see what was happening down below):
Carroll’s testimony was equivocal on the matter of how Trump allegedly penetrated her. She said that in the chaotic struggle that went on for several minutes, she was sure there was penetration but wasn’t certain whether it was just his fingers, his penis, or both. Further, she related that she managed to push him away and get out of the Bergdorf Goodman fitting room in the middle of all this (i.e., she discerned no ejaculation or other certain indicator of sex-organ penetration). [Emphasis added.]
Remember, the jury could not have found sexual abuse absent also finding forcible touching. The best interpretation of the jury’s verdict, then, is that it believed Carroll had established digital penetration, but not penile penetration — it might have happened, but she admitted she wasn’t sure.
To this must be added three other aspects of the evidence:
First, Judge Kaplan controversially allowed Carroll to present similar-act evidence: the testimony of two women who claimed to have been sexually assaulted by Trump. Both women claimed Trump was handsy, but neither claimed that Trump had tried to penetrate her (in any manner).
Second, as additional similar-act evidence, Kaplan allowed Carroll to introduce the infamous Access Hollywood video, in which Trump bragged about being sexually aggressive with women. In it, Trump made no claim about penile penetration but did assert that women let him “grab them by the p****.” If the jurors thought that was anything more than locker-room talk, they could have concluded it lent credence to Carroll’s claim about digital penetration.
Third, Carroll could not remember when the supposed sexual assault occurred (which should have been a huge credibility problem — and is clearly a big part of why the jury awarded only $2 million for sexual abuse). To support her claim, she presented the testimony of two friends, one of whom she called minutes after the assault allegedly occurred. Significantly, she did not tell that friend that she had been raped; rather, the friend observed that Trump had “raped” Carroll, and Carroll seemed to agree that that was the case.
Now, mindful that the jury believed Carroll, let’s consider those three points in conjunction with Carroll’s testimony. The jury found that there was sexual abuse that included forcible touching. Carroll testified that she’d certainly been digitally penetrated but wasn’t sure beyond that. Trump’s braggadocio about grabbing women he barely knows you know where could be construed as consistent with Carroll’s claim of digital penetration. Yet the similar-act witnesses do not claim to have been raped; and the word “rape” seems to have been suggested to Carroll, not something she initially claimed. Ergo, the jury appears to have found that Carroll was digitally penetrated but that she did not prove she was raped in the common understanding of that word.
Judge Kaplan’s Conclusions about Carroll’s Rape Claim
Why do I say “the common understanding” of rape? Here we come to perhaps the most important consideration in evaluating what Stephanopoulos said. He didn’t just rely on the jury finding; he relied on the finding by the judge. Regarding that, here’s what I’ve previously related:
Marshaling this evidence when he denied Trump’s posttrial motions, Judge Kaplan reasoned that the jury had credited Carroll’s testimony that Trump penetrated her digitally. Rejecting Trump’s claim that the jury had found he did not commit rape, Kaplan observed that the jury had not found rape in the narrow sense of New York statutory law, which defines the act as including penile penetration; however, statutes in many other states, as well as federal guidelines, have expanded the definition of rape to include (among other things) digital penetration. Kaplan concluded that there was little or no daylight between the popular understanding of “rape” and what the jury had to have found Trump did.
That is, Kaplan held that, in light of the testimony, the sexual assault that the jury found did amount to rape under both federal law and the law of many jurisdictions, even if it did not amount to rape under New York law — the law under which the case was tried. More to the point, Kaplan rejected Trump’s premise (the one I discussed above) that the jury had found that Trump did not rape Carroll; instead, the jury concluded that Carroll did not sufficiently prove rape under New York law (not necessarily that rape did not occur).
Stephanopoulos’s Sloppy but Minor Misstatements
Now, Stephanopoulos made some other embarrassing errors, but these misstatements are reprehensible because of his partisan motive and how easy it would have been for him to be accurate given the ABC News resources available to him; they were not major distortions of the truth. Specifically, he said that “judges” (plural) and “two juries” had found Trump “liable for rape.”
Again, there was only one judge — Kaplan — although he presided over two trials. When Stephanopoulos interviewed Mace, appeals court judges had not yet considered, much less ruled on, these matters. (Trump is appealing the decisions against him in both trials. In September, the Second Circuit heard oral argument in the first trial; I don’t believe the appeal of the second trial has advanced far at this point.) Stephanopoulos should be embarrassed about getting the number of judges wrong, but the error was de minimis.
The second error was more substantial but still not very consequential. As I explained earlier:
Only the jury in the first Carroll trial found Trump liable for sexual abuse. The second jury was not asked to make such a finding; it was limited to assessing monetary damages based on two defamation claims (separate but substantially indistinguishable from the defamation claim in the first trial). [All the defamation claims were based Trump’s oft-repeated claim that the encounter Carroll has described never happened and that she has lied in saying otherwise.] Still, the staggering $83.3 million judgment [in the second trial] can only be rationalized if we conclude that the jury believed that Trump was slandering Carroll by accusing her of falsely claiming sexual abuse. Ergo, although the second jury did not find Trump liable — for rape or sexual abuse — its verdict implicitly reflects a conclusion that sexual abuse occurred (which is what Judge Kaplan instructed them to assume, based on the first jury’s verdict).
The gravamen of Trump’s defamation claim is that Stephanopoulos falsely claimed that Trump had been found liable for rape by a jury and a judge. That Stephanopoulos sloppily attributed this supposed finding to two juries and multiple judges adds little or nothing to Trump’s claim.
As I concluded back in March, even if we ignore the more demanding legal standard Trump would bear in a defamation case because he is a public figure, I don’t see how Trump could have prevailed at trial “given the jury’s verdict, the legal instructions on which it was based, and the elaboration on it by Judge Kaplan in formally denying Trump’s motions.”
Trump’s Default
Finally, left unexamined in all of this is Trump’s own contribution to his Carroll problems. Again, her case was very weak — no recollection of when the supposed sexual assault happened, no report to the police, no on-site witnesses who saw her and Trump together at the famous midtown Manhattan shop, no surveillance video, no forensic corroboration. Even her description of the alleged assault in her 2019 book — roughly a quarter-century after it allegedly happened — is a sideshow, not the centerpiece; Carroll seems to have been put up to filing a lawsuit by anti-Trump partisans and got the fortuity of a Me Too–era reprieve from the statute of limitations for sexual assault claims. I believe the case is going to be reversed on appeal because Kaplan allowed the introduction of so much similar-act (or propensity) evidence that it dwarfed Carroll’s much sketchier claim.
All that said, the now-president-elect mainly lost the case because he defaulted. The jurors believed Carroll because Trump failed to pay them the respect of showing up at the trial for a day or two, as they had to do every day, and taking the witness stand so that, under oath, he could look them in the eye and tell them he didn’t do it — with all the passion he brought to the denials he issued in public appearances outside the courtroom. Carroll’s account may be dubious, and may call for more skepticism due to the weirdness of her public statements about it. But she showed up and told the jury her story, and the jury credited her for it — especially with Trump failing even to try to refute it.
I presume Trump did this because he calculated that it would be bad for his presidential campaign if he testified, with all the intense media coverage that would have entailed, and then the New York jury found for Carroll anyway. Maybe Carroll’s story is an invention and, therefore, it was unfair that Trump had to put in the time, effort, and expense of defending against it. Yet, life is unfair, and when we are accused of things we are innocent of — particularly terrible things — most of us don’t need to be encouraged to defend ourselves.
Trump decided not to do that, at least in the place where it counted — the courtroom. If you take that tack in a civil case, you are nigh certain to lose. Unlike in criminal cases, the judge in a civil case instructs the jury that it may draw a negative inference against a defendant who fails to testify — on the commonsense assumption that if he had an innocent explanation, he’d provide it. Trump had good legal representation and had to know what would happen if he blew off the trial. He blew it off anyway.
Sing no sad songs for Stephanopoulos and ABC News. Technically, it’s unlikely they committed defamation, but they deserve the rebukes they’re getting, and they wouldn’t have paid up unless doing so was worth it to them. Still, I believe there would be no need to argue over what the jury’s finding meant if Donald Trump had shown up and testified. A plaintiff’s claims may be farfetched, but in civil litigation, farfetched is bound to beat silence.