ABC Bends The Knee

Sometimes discretion is the better part of valor.

Saturday morning, Donald Trump and ABC News agreed to settle his defamation claims over an interview in which George Stephanopoulos repeatedly claimed that a jury had found Trump liable for raping advice columnist E. Jean Carroll.

ABC will cough up $15 million for the Trump Presidential library, plus another $1 million for Trump’s lawyer. (That’s not a legal fee, it’s ransom.) The network will also run an on-air apology saying that “ABC News and George Stephanopoulos regret statements regarding President Donald J. Trump made during an interview with George Stephanopoulos with Rep. Nancy Mace on ABC’s This Week on March 10, 2024.”

The agreement precipitated a furious backlash from many online commentators (including me!) who viewed the settlement as an act of political cowardice by ABC, yet another example of the media “complying in advance” with Trump’s bullying and intimidation.

Just Asking Questions

On March 10, Stephanopoulos interviewed Republican Rep. Nancy Mace, a stalwart Trump defender with an addiction to self-aggrandizing media stunts. Stephanopoulos repeatedly pushed Mace, a rape survivor, to justify her support for Trump after a jury found him liable for sexually abusing and defaming Carroll. At least twelve times during the interview, Stephanopoulos stated as fact that two separate New York juries had found Trump “liable for rape.”

Stephanopoulos’s language was imprecise. The jury found that Trump did not rape Carroll as a matter of New York law, which defines rape as forcible penetration with a penis. The jury did find Trump liable for battery for having sexually abused her, believing Carroll’s excruciating testimony about being thrown up the wall and forcibly penetrated by the future president’s fingers.

As Judge Lewis Kaplan pointed out on multiple occasions, this conduct would qualify as rape in many other jurisdictions. When Trump countersued Carroll for defaming him, Judge Kaplan dismissed the claim, branding Trump a “digital” rapist.

“Indeed, the jury’s verdict in Carroll I establishes, as against Mr. Trump, the fact that Mr. Trump ‘raped’ her, albeit digitally rather than with his penis,” the judge wrote. “Thus, it establishes against him the substantial truth of Ms. Carroll’s ‘rape’ accusations.”

But however vile Trump’s conduct, a reasonable person might find Stephanopoulos’s statement that “two juries” found Carroll liable for rape to be false. And so in July Judge Cecilia Altonaga rejected ABC’s motion to dismiss on the grounds that Stephanopoulous’s statements were “substantially true.”

She held that “a reasonable jury could interpret Stephanopoulos’s statements as defamatory,” noting that “of course, the Carroll II jury did not find Plaintiff liable for rape under New York Penal Law; it was Judge Kaplan who determined that the jury’s verdict amounted to liability for rape.”

In other words, this is not a garden-variety garbage Trump trollsuit. Stephanopoulos should have been more careful with his words.

Deadlines Concentrate the Mind

The parties spent the rest of the summer and fall in pre-trial discovery under the supervision of Magistrate Judge Lisette Reid. Much of this took place off the public docket, but we do know that on Friday, December 13 Judge Reid ordered Trump to appear “in person” for a four-hour deposition beginning the week of Monday, December 16, i.e., the next business day. Courts rarely order a party to sit for deposition on such short notice, and it’s a safe bet that Trump had been ducking this for quite some time.

That gave ABC maximum leverage on Friday afternoon, since Trump is a notoriously terrible witness. In the Carroll litigation, he said under oath that his comment in the Access Hollywood tape that “when you’re a star, they let you do it” was “true, fortunately or unfortunately.” He misidentified a picture of Carroll, whom he’d said he could not have raped because she was not his “type,” as his second wife Marla Maples. He even volunteered — without being asked! — that he was not sexually attracted to Carroll’s lawyer. Carroll’s counsel played tapes of Trump’s deposition at the trials, and juries found Trump liable for $83 million in damages.

Had Trump simply refused to show up for his deposition, ABC could have moved to compel and/or for sanctions, and, if Trump continued to no-show, Judge Altonaga almost certainly would have dismissed the lawsuit outright. (Even when you’re the President, you have to sit for a civil deposition if you’re the plaintiff.) Litigating a couple of discovery motions would have cost far less than the $16 million ABC forked over in this settlement.

So why did ABC cave? And why did the network agree to a settlement that wasn’t confidential or otherwise subject to a nondisclosure agreement, allowing Trump to take such a public victory lap?

One reason may be the reciprocal nature of Judge Reid’s order, which required Stephanopoulos to sit for his own four-hour deposition. He would almost certainly have had to testify about an interview with E. Jean Carroll in May in which he asked, “How about yesterday in the courtroom the first announcement was made and it was that he was not found liable for rape. What were you thinking at that moment?” To prove actual malice, Trump would have had to establish that Stephanopoulos knew that the rape allegation was false. And this interview is a very bad fact.

Perhaps there were embarrassing internal communications before the segment with producers debating the precise language Stephanopoulos planned to use. Maybe the control room flipped out during the interview and said, “Call legal, George just defamed the shit out of Trump!”

From the outside, we just can’t know. But it’s safe to assume that the defendants had a strong incentive to avoid deposition as well, because their lawyers aren’t stupid. The network and Stephanopoulos are represented by about twelve attorneys from the megafirm Davis Wright Tremaine. That is literally the best legal representation money can buy, and when your high-priced counsel tells you to pack it in, you can be pretty sure they’ve weighed all the risks.

Okay, but can we still be pissed?

We can always be pissed. (And probably will).

It is impossible to separate this settlement from the news that media outlets are falling all over themselves to signal obeisance before Trump even takes office. Jeff Bezos, the owner of the Washington Post, contributed a million dollars to Trump’s inauguration fund. Time Magazine made him its Person of the Year. Patrick Soon-Shiong, the owner of the Los Angeles Times, killed an editorial that criticized Trump’s cabinet picks. It’s fair to read ABC’s prostration as yet another act of surrender, born of a calculation that it is wiser to enter into transactional deals with a corrupt leader who has promised to weaponize the federal government than to resist.

But journalism’s “job” is to tell the truth, and that does not include a mandate to continue risky civil litigation to vindicate the public’s need for someone to stand up to Trump. We can’t outsource justice to civil litigants because the criminal justice system failed to do its job (and so did the voters).

In the end, ABC’s cowardice highlights E. Jean Carroll’s unique bravery. She sued a sitting president, knowing that it would subject her to a lifetime of harassment and threats and put her own personal life under a cruel microscope. She’s never collected a penny, and yet she remains the only one in the past eight years who ever managed to hold him accountable.* She didn’t shut up, and she didn’t take a deal, and she’s got more balls than all of them.

*The jury’s still out on New York Attorney General Tish James, whose massive civil fraud verdict is still on appeal.