Trump's lawsuit against ABC is not the flex he thinks it is
In a sane world, the underlying facts would be disqualifying.
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As if Trump wasn’t already spending enough donor money defending himself against a truly staggering number of civil and criminal lawsuits, he just inexplicably decided to take on ABC and George Stephanopoulos by filing a defamation lawsuit that seems doomed to fail. At least such an experience won’t be new for Trump, who already had federal judges toss his defamation lawsuits against the Washington Post, New York Times, and CNN.
The latest laughably thin complaint was filed on Monday in the Miami Division of the United States District Court for the Southern District of Florida. The case has been assigned to Chief Judge Cecilia M. Altonaga, a George W. Bush appointee. The suit alleges that Stephanopoulos defamed Trump earlier this month by saying Trump had been found liable for rape during an interview with GOP Rep. Nancy Mace. Mace has revealed that she was a victim of rape, and Stephanopoulos, rightfully, wanted her to explain how she could endorse Trump. (You can watch a clip from the tense interview below.)
The interview went wildly viral on twitter thanks to one Aaron Rupar, who, as he’s wont to do, posted a thread with clips from it. Now, Rupar is stuck being in Trump’s complaint as evidence the alleged falsehood was seen far and wide. From the document:
Mace somehow thinks Stephanopoulos’s questions about how she could support Trump amounted to shaming her as a rape victim. She’s now busy now doing a media tour thanking Trump for his lawsuit and calling for a Republican boycott of ABC, appearing on Newsmax to say, “I’m going to tell the truth, Donald Trump is going to tell the truth, and we’re not going to take it from a troll with a microphone like George Stephanopoulos.” Yes, Donald Trump, known truth-teller.
What Trump’s defamation lawsuit turns on is his belief that being found liable for sexual assault is not the same as being found liable for rape, so therefore he’s no rapist, and it’s a lie to say he is. It’s a dubious splitting of legal hairs, particularly as the judge in the E. Jean Carroll lawsuit already clarified that Trump was indeed found liable for rape in the way the term is commonly understood.
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“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,’” Judge Lewis Kaplan wrote.
Kaplan went on to chide Trump and his lawyers for “mistakenly focus[ing]on the New York Penal Law definition of ‘rape’ to the exclusion of the meaning of that word as it often is used in everyday life and of the evidence of what actually occurred between Ms. Carroll and Mr. Trump.”
That would seem to clear things up and forestall any normal person from trying to litigate this all over again, but Trump is Trump, so here we are.
Anything to win a news cycle
This new defamation lawsuit comes off as half Trump trying to relitigate the E. Jean Carroll case within an entirely different legal complaint and half a desperate attempt to get his name in the news cycle so he can throw red meat to his supporters. Trying to shift the narrative by getting people to publicly argue over whether you’re a rapist is an odd choice, and it’s likely also an unsuccessful way to wring millions out of ABC, though Nancy Mace seems to think that he should ask for $454 million in damages.
Of course, and not coincidentally, that’s very close to the amount Trump has to put up as bond to appeal the whopping judgment New York Attorney General Letitia James obtained against him. Even insurance giant Chubb, which put up the $91.6 million bond so Trump could appeal the damages verdict in the E. Jean Carroll case, turned Trump down for the $464 million bond request.
It remains astonishing that attorneys continue to agree to represent Trump given his history of stiffing people who work for him, the fact he already owes nearly half a billion in damages he claims he can’t pay, and is clearly the world’s worst client. Nevertheless, Alejandro Brito, a Florida lawyer who previously represented Trump in a lawsuit against Michael Cohen, is handling this lawsuit.
A quick review of Brito’s law firm website shows he normally represents clients in commercial disputes and franchise litigation. If you search for the term “defamation” on the site, you land on a weird webpage with a bunch of vague feel-good sayings like “Start Every Meeting with A Handshake” and “Knowledge is Power. Read Books to Get Smart.” All of them are weblinks, but if you click through, it’s just lorem ipsum placeholder text. To be fair, Brito is currently handling another defamation suit, one where he represents Grant Cardone, who’s mad that someone said he isn’t a real billionaire. So perhaps he’s perfect for Trump.
A clownish case
There are a few reasons this lawsuit seems likely to crash and burn. The first is how defamation law works, particularly for public figures. Simply showing the statement is false, which suffices when everyday people sue for defamation, isn’t enough in this instance.
Thanks to a 1964 case, New York Times v. Sullivan, politicians and other public figures who bring defamation cases are held to a higher standard of proof. Trump will need to prove “actual malice.” That isn’t malice in the sense of maliciousness, but rather that Stephanopoulos either knew that he was lying about whether Trump was a rapist or that Stephanopoulos purposely failed to investigate whether Trump was indeed a rapist with an intent to avoid the truth.
Trump has long resented this heightened standard of proof. When he ran for president in 2016, he declared that if he won, he would “open up our libel law” so that people could sue mainstream media entities “like you’ve never been sued before.” Trump lies constantly and would love to make it easier to sue the press over their coverage of him.
Besides needing to prove that Stephanopoulos knew calling Trump a rapist or liable for rape was a lie or that ABC had deliberately failed to investigate the truth of the statement before Stephanopoulos made it, Trump is stuck with another problematic legal standard, that of “substantial truth.” Minor factual inaccuracies don’t render a plaintiff liable for defamation as long as the statement doesn’t “materially alter the substance or impact of what is being stated.” Stephanopoulos relying upon an everyday understanding of the word “rape” and a judge’s order stating that what Trump did to E. Jean Carroll was rape, regardless of whether it fits the New York Penal Code definition, is quite likely to be determined to be substantially true.
The final, inescapable problem for Trump is that to prevail in this lawsuit, there will be discovery, and Trump would have to sit for a deposition and go on the stand. As the plaintiff in a defamation lawsuit, rather than a defendant, he’d be required to show up for trial and testify under oath. Recall that in the first E. Jean Carroll trial, Trump’s legal team decided to mount no defense whatsoever, and didn’t even show up for the original spring 2023 trial over whether he did sexually abuse Carroll.
In that trial, a jury found Trump did both sexually abuse Carroll and defame her. Once the jury made that decision, it meant that during a subsequent damages trial earlier this year, Judge Kaplan barred Trump from presenting testimony that would attempt to dispute or undermine the sexual abuse finding.
Needing to prove actual malice, getting around the substantial truth doctrine, and then being stuck going through discovery, depositions, and a trial — none of these are things Trump wants to have to do.
What Trump does want is the right to continually use the courts to attack people without risk of consequences for any of his actions. But since he bears the burden of proving that Stephanopoulos knew he was lying, the lawsuit will not useful in the way Trump wants, which is just as a vehicle to bash ABC and, by extension, E. Jean Carroll all over again.
Instead, it will be a process based on splitting hairs as to whether being found liable for rape is the same as being liable for sexual assault. It will remind people that Trump was found liable for forcibly digitally penetrating another person with his fingers. Further, Trump is stuck with Judge Kaplan’s statement that what he did was rape as most people understand the term.
You can’t shame the shameless
Of course, the elephant in the room is that all of this should be disqualifying for Trump. We’re going through yet another election cycle where there’s clear evidence Trump sexually assaulted someone, just like in 2016 when he bragged about grabbing women by the pussy. In a sane pre-Trump world, he never would have been elected in 2016 thanks to those comments, and he certainly wouldn’t be riding high as the 2024 Republican nominee after being found liable for sexual assault.
Watching Nancy Mace weaponize her own rape trauma to help Trump attack the media is horrifying, but the real horror here is that a significant portion of the population sees nothing wrong with any of this and will back Trump all the way to the White House again.
It’s worth paying attention to how the goalposts never stop moving. Even if Trump was convicted of a crime in connection with any of his more than two dozen sexual misconduct allegations, people like Mace would surely find a way to explain it away by discrediting court officials, the jury, or the entire justice system.
Stephanopoulos is right — Mace’s endorsement of Trump is indefensible and inconsistent with her claims about taking sexual violence seriously. But she and other prominent Trump supporters have already made clear they’re beyond feeling shame.
That’s it for this week
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We’ll be back with more Monday. Until then, have a great weekend.
I take this as further evidence that Trump is out of control and not listening to sensible advice - or even people with half a brain brave enough to state the obvious truth. Clearly this case hasn't got a prayer of succeeding in court. But when you are in the run up to an election I can't think of a single PR adviser or political adviser who would say it's a good idea to draw attention to the fact that you've been found in court liable for sexual assault (and indeed rape as most people understand the term). It can only mean that Trump is angry with Mr S and so wants to strike back at him in the way he's used to. But Mr S and the ABC will lose no sleep over this case and the action will just give an unfavourable story more legs in the run up to an election. I can ony think this is dumb unthinking rage. We've seen quite a bit of it and I wouldn't be surprised if we see more of it in the coming months.
The #LitigationDisasterTourism peeps on Twitter, now Bluesky, refer to this as a “tweet with a filing fee.” As with previous, similar defamation lawsuits Trump filed, this is unlikely to survive a Motion to Dismiss, & Trump (er, his donors) will end up paying the defendant’ court costs