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| Nancy Mace and George Stephanopoulos interview on ABC |
Just when you think Donald Trump has done all of the stupid things he can do, along comes a story like this: Trump has filed a lawsuit against ABC News and anchor George Stephanopoulos, claiming an episode of their Sunday morning This Week program included false and defamatory statements about him.
Trump's complaint grew from an interview Stephanopoulos conducted with U.S. Rep Nancy Mace (R-S.C.), focusing on Trump's sexual-assault/defamation cases against writer E. Jean Carroll. The gist of Trump's lawsuit against ABC seems to be this: Stephanopoulos stated during his March 10 interview with Mace that a Manhattan jury had found Trump " liable for rape" in the Carroll case.
The story becomes muddled because the jury, on its verdict form, found Trump had sexually abused and injured Carroll. But on the separate question of whether Trump had raped Carroll, the jury marked "no."
To complicate matters further, Judge Lewis Kaplan noted that the definition of rape under the New York Penal Code varies slightly from the common understanding of the offense. Kaplan then found that the jury had, in fact, found Trump "liable for rape."
A reasonable person might think that would have put an end to any legal complaint Trump might have had. But we are talking about Donald Trump here. In his mind, the jury had answered "no" on the question of liability for rape, but the judge had answered "yes." In all of that confusion, Trump somehow convinced himself that Stephanopoulos had defamed him -- even though Trump clearly is a public figures, and it is difficult for plaintiffs holding that status to win defamation cases.
The Above the Law legal website called Trump's lawsuit a "turkey" of a case. Under the headline "Trump Previews Electoral Strategy Of Shouting 'Just An ATTEMPTED Rapist' At Random Judges; Do they give a Nobel Prize for attempted chemistry? Do they?" Liz Dye explains just a few of the problems that make Trump's claim a "turkey":
Donald Trump would like to remind you that he pinned E. Jean Carroll up against the wall and forced his fingers inside her, but was unable to penetrate her with his penis. In fact, he’s so interested in driving this point home that he just sued ABC and George Stephanopoulos for eliding the distinction.
It’s not clear why the former president insists on reminding us of this at regular intervals, but it happens often enough that it can’t be an accident.
It started on the steps of the courthouse after the first jury ruled that Trump was liable for sexual assault, not rape. His attorney Joe Tacopina, was able to convince the jurors that Trump might not have been able to get his penis inside her while restraining her with his arms and his torso.
“I’m happy that Donald Trump was not branded a rapist,” the lawyer said to reporters on the courthouse steps, attempting to spin the sexual assault and defamation verdicts as some kind of win.
What's the problem with the first sentence of that last paragraph? Trump WAS branded a rapist -- by the judge. That point of fact did not slide by Liz Dye. She writes:
Trump’s longtime ally Alan Dershowitz echoed the statement, calling it a “Rorschach verdict,” since the jurors found Trump “liable on kinda molesting her,” but not for rape.
Almost immediately, Trump filed a motion for a new trial or remittitur, on the theory that the jury must have been confused when it assessed $2 million in compensatory damages for conduct which could have amounted to no more than “groping of [Carroll’s] breasts through clothing or similar conduct, which is a far cry from rape.”
Judge Kaplan denied the motion, noting that Trump is a rapist under the colloquial definition of the term, if not under New York law.
The definition of rape in the New York Penal Law is far narrower than the meaning of ‘rape’ in common modern parlance, its definition in some dictionaries, in some federal and state criminal statutes, and elsewhere,” the court noted, citing dictionaries and other jurisdictions’ laws defining “rape” as non-consensual penetration of any kind. The finding that Ms. Carroll failed to prove that she was “raped” within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump “raped” her as many people commonly understand the word “rape.” Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.
Did that stop Trump? Nope, and to no one's surprise, his lawyers could not talk any sense into him -- or perhaps they did not try. Writes Dye:
Undeterred, Trump turned around and filed a counterclaim for defamation against Carroll based on the theory that she lied about having been raped. That was also denied, and, in a separate order, Judge Kaplan reiterated that Trump was indeed still a rapist.
Mr. Trump’s principal argument is just wrong. Indeed, the jury’s finding that Mr. Trump sexually abused her implicitly determined that he had penetrated her vagina with his fingers, a form of “rape” as that word often is used.
So Stephanopoulos wasn’t too far off the truth when he repeatedly asserted on March 10 that Trump had been found liable for rape by a judge and a jury. And yet Trump filed a defamation lawsuit against him and his employer this week in the Southern District of Florida, alleging that the statements had been made with actual malice.
There are about a million potential problems with this trollsuit, starting with the fact that it was filed in the Miami division, where no party resides. But this isn’t the first rodeo for Trump’s attorney Alejandro Brito, who sued Michael Cohen for saying mean things about Trump and also took over Trump’s defamation suit against CNN for using the phrase “the Big Lie.”
The first case was voluntarily dismissed by the plaintiff, and the second one got booted by Judge Raag Singhal, Trump’s own appointee. But perhaps the third time is the charm for Brito, who took full advantage of the litigation privilege to repeat the defamatory statements which have cost Trump dearly, referring in the complaint to “Carroll’s false, fabricated, and defamatory allegations.”
Filing in the Miami division, as opposed to Palm Beach where Trump lives, was unsubtle — although not as unsubtle as the time he sued the Pulitzer Committee in Okeechobee County state court on the theory that you can access the prize board’s website there. But if the hope was to score Judge Aileen Cannon or another of Trump’s own appointees, the ploy failed. The case was assigned to Chief Judge Cecilia Altonaga, a George W. Bush appointee who is not noticeably insane.
On the other hand, before this turkey gets yeeted into the sun, Trump will be able to annoy ABC and fundraise off his heroic fight against the evil media, so … MAGA MAGA MAGA!
Trump doesn't seem to understand this, but there can be serious downsides to filing a baseless lawsuit: (1) ABC News and Stephanopoulos could file a counterclaim -- and they could win, costing "The Orange Man" a sizable amount of cash that he apparently doesn't have at the moment; (2) Trump and his lawyers could be hit with sanctions, the kind that can add up quickly in a court of law; (3) I'm not a lawyer, but I do know this about defamation law. There is something called the "Substantial Truth Doctrine," and it has been described this way at Digital Media Law:
"Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Time Inc. v. Hill, 385 U.S. 411 (1967). Consequently, a plaintiff has to provide convincing evidence of a defamatory statement's falsity in order to prove defamation.
The law does not require that a statement must be perfectly accurate in every conceivable way to be considered "true." Courts have said that some false statements must be protected for the wider purpose of allowing the dissemination of truthful speech. The resulting doctrine is known as "substantial truth." Under the substantial truth doctrine, minor factual inaccuracies will be ignored so long as the inaccuracies do not materially alter the substance or impact of what is being communicated. In other words, only the "gist" or "sting" of a statement must be correct.
The substantial truth defense is particularly powerful because a judge will often grant summary judgment in favor of a defendant (thus disposing of the case before it goes to trial) if the defendant can show that the statement the plaintiff is complaining about is substantially true, making the defense a quick and relatively easy way to get out of a long (and potentially expensive) defamation case.
In this peculiar instance, the jury and the judge came up with what could be called a "mixed verdict"; the jury answered "no" on the question of liability for rape, but the judge answered "yes." In every court of law I've seen, the judge is The "Head Honcho," "The Big Cheese," and his word stands -- even if, like a lot of judges, his ruling runs contrary to relevant fact and law. (That's a post for another day . . . )
Here, Stephanopoulos went with "The Big Dog," and accurately reported that the judge found Trump WAS liable for rape. In fact, Judge Kaplan flat-out called Trump a "rapist."
Under those circumstances, I see no way ABC and its anchor could be found liable for defamation. Stephanopoulos was both substantially true and literally true, so it's hard to see how Trump possibly can prevail. And if the defense is granted summary judgment, Trump will not even get his day in front of a jury.
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