The MAGAs gloated over Donald Trump’s $16 million settlement with ABC News and George Stephanopoulos with howls of execration that might only be rivaled were AOC caught in a transgender brothel. The New York Post headline garishly proclaimed, “AS SLEAZY AS ABC,” and suggested Stephanopoulos ‘was warned’ “not to accuse Trump of rape.”
Stephanopoulos was reportedly “apoplectic and humiliated” over the settlement, which also involved a contribution to Trump’s presidential foundation and museum whenever he gets around to building one, and the payment of $1 million in legal fees. ABC also issued a public statement expressing regret over the anchor’s statements.
Back in March, Stephanopoulos, a co-defendant with ABC in the case, during a contentious interview with Representative Nancy Mace, the South Carolina Republican, and herself a rape survivor, said Trump was found liable for rape. During the interview on the eponymous This Week with George Stephanopoulos, he asked Ms. Mace, who has spoken publicly about being raped as a teenager, why she continued to support Mr. Trump considering the outcome of the civil case.
Now, I have no brief for Stephanopoulos, and I have no idea why he believed it necessary to say what he said. The public didn’t need to know much more about Trump’s asocial personal behavior. The 45th president was not then a convicted felon but on his way to being one. Trump had sparked an insurrection on January 6, 2021, and was an adjudicated fraudster and, according to a jury, a sex abuser of the writer E. Jean Carroll in a department store dressing room. To accuse him of rape was a tautology, uninformative at best and malicious at worst. But how anyone can say that his personal reputation was damaged to the tune of $16 million boggles the mind.
Trump claimed he had been defamed since the jury in Carroll’s civil suit had not found there was a rape, just a forcible digital penetration, not a penile one.
This seems like a distinction without a difference, but there are some differences. Under the New York State Penal Law, §130,35, rape is narrowly defined as “when [someone] engages in sexual intercourse with another person by forcible compulsion.” Interestingly, the Department of Justice gives a broader definition of rape: “The penetration, no matter how slight, of the vagina … with any body part or object… without the consent of the victim.” The broader description might well represent an accurate account of what the jury found Trump did in the dressing room.
In any libel action, the truth is a complete defense. Libel is a wrong to the personality, false and defamatory writing (national TV in prime time would invariably be a form of writing from the perspective of libel law.) It is precisely the tort of defamation that another jury subsequently found Trump had committed on the personality of E. Jean Carroll when he denied on television that he had sexually abused her.
Often, defendants in a libel case argue that the words they used had some truthful meaning. An example might be that if the defamation was that someone was “under indictment,” and the statement was false, the defendant could not argue that what was intended was that the plaintiff had been accused in the court of public opinion of indictable crimes even though never indicted by a grand jury. It is fundamental libel law that words charged to be defamatory are to be taken in their natural meaning…they are to be “construed as persons generally understand them and according to their ordinary meaning.”
Judge Lewis Kaplan, who presided at the Trump defamation trial, weighed in and sought to resolve this very problem: “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,’ ”
He added: “Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.”
Kaplan said New York’s legal definition of “rape” is “far narrower” than the word is understood in “common modern parlance.”
The former requires forcible, unconsented penetration with one’s penis. But he said that the conduct the jury effectively found Trump liable for—forced digital penetration—meets a more standard definition of rape. He cited definitions offered by the American Psychological Association and, again, the Justice Department, which in 2012 expanded its definition of rape to include the language “with any body part or object.”
Unless there is some smoking gun in the discovery we don’t know about, ABC should have won the case in a heartbeat. To protect free press rights, the Supreme Court held in 1964 that when the plaintiff is a public figure, he must prove by clear and convincing evidence that the defendant had actual knowledge of the falsity or a reckless disregard for the truth—a very heavy burden.
Trump brought the case in the Southern District of Florida, his favorite venue. The matter fell to a highly experienced federal judge, Cecilia Altonaga, who sits in Miami 75 miles from Mar-a-Lago. She is by no stretch the callow Aileen Cannon, the in-the-tank-for-Trump jurist who presided over the classified documents case.
So why did ABC settle? And why do so before depositions and a motion for summary judgment? Were they scared of a fight or simply kowtowing to Trump? Were there incriminating statements in Stephanopoulos’s texts and emails that would have emerged during discovery?
We can’t know what motivated ABC and the brass at The Walt Disney Company to cave. ABC may well have decided it was better to settle than battle with the incoming president. However, the timing, days after executives met with Trump’s incoming White House Chief of Staff Susie Wiles, suggests a connection. One thing we know, ABC did not adequately consider the chilling effect on press freedoms.
And this is just the beginning. On the heels of the settlement, Trump indicated he would sue Ann Selzer, the pollster, and the Des Moines Register for “brazen election interference” because of a pre-election poll that proved wildly inaccurate but favorable to Harris. It doesn’t matter that previous polls conducted by Selzer and the paper often overestimated Trump’s electoral strength.
ABC’s decision, coupled with the Iowa suit, indicates the president-elect and, presumably, his administration will not hesitate to go after news organizations when it serves its purposes to do so. After all, Trump thinks they are the “enemy of the people.”
The danger, of course, is that the media will not only tread carefully but self-censor when they should hold the president and all the president’s men fully accountable.
We are in a bad way with Trump’s victory, and I don’t just mean those of us who make their living with pen and tongue. The soon-to-be 47th president has de facto control over the executive branch, the Republican-majority Congress, and the conservative Supreme Court, where GOP-nominated justices hold a 6-3 edge.
The free press is one of the few institutions that can place guardrails around Trump, but only if it has the courage to do so. When a powerful, profitable corporation like Disney chooses to settle a winnable case, what kind of signal does that send to other conglomerates with news outlets—Paramount Global and CBS, Comcast and NBC, Warner Bros. Discovery and CNN, let alone many journalistic outlets without deep pockets? This may not have been what James Madison had in mind when he wrote Federalist 51, creating a system of checks and balances, but it may be as good as it gets right now.
In October 1973, after protesting his innocence for 65 days, Vice President Spiro Agnew pleaded no contest to a criminal tax evasion charge and resigned his office while President Richard Nixon was embroiled in the separate Watergate scandal that would lead to his resignation the following year. Congeries of other charges, involving perhaps $100,000 in payoffs to Maryland contractors favored by Agnew for the award of state contracts when he was governor from 1967 to 1969, were dropped as part of the plea bargain.
In an open letter to Agnew, published October 15, 1973, on the then relatively new Op‐Ed page of The New York Times, Trump’s mentor Roy M. Cohn, the infamous counselor to Senator Joe McCarthy, took Agnew to task for making “a dumb mistake… in quitting and accepting a criminal conviction.” Having been acquitted after three separate federal indictments on conspiracy, bribery, and fraud charges, Cohn evidently considered himself exceptionally well qualified to suggest that Agnew’s “chances for legal and political survival were excellent.
Cohn’s tone was defiant. He said: “In resigning and taking a plea, you surrendered the fibre that has brought you worldwide respect.” Referring to the convicted State Department official Alger Hiss and Daniel Ellsberg, who leaked the Pentagon Papers, Cohn scolded that they “can still argue their innocence. You no longer can. Your decision not to stand up and fight was…at worst, a betrayal of millions of Americans who gave you an opportunity for greatness.“
So let it be with ABC News.
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