In other news, ABC wins motion to keep question of “What kind of rapist is Trump?” in the news forever.
The post ABC Loses Motion To Dismiss Defamation Suit Against Stephanopoulos appeared first on Above the Law.
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If you are currently preparing for the July bar, you could do worse than to read the most recent order in Donald Trump’s defamation suit against ABC and George Stephanopoulos.
Choice of law? Collateral estoppel? Defamation? This joint’s got everything!
Plus, Trump is super pumped about his “BIG WIN TODAY IN HIGH FLORIDA COURT.” (I’ll give $5 to any reporter who asks him which court he’s talking about.)
The case arises out of Donald Trump’s wish to remind the world that the jury only found him liable for forcibly penetrating E. Jean Carroll as he pinned her against the wall of that department store dressing room. It was not able to conclude that he successfully pushed his penis inside her. And although this might meet the statutory definition of rape in some jurisdictions, New York is not one of them. So please don’t call him a rapist, thankyouverymuch.
Trump repeatedly made this argument in court, including in a countersuit for defamation against Carroll, only to be shot down by the trial court. In his order dismissing Trump’s counterclaim, Judge Lewis Kaplan wrote:
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. Thus, it establishes against him the substantial truth of Ms. Carroll’s “rape” accusations. In any case, the Carroll II jury’s Penal Law rape finding does not even establish, as against Ms. Carroll, Mr. Trump’s contention that he did not penetrate her with his penis, i.e., that he did not rape her within the meaning of the Penal Law.
On March 10, 2024, Stephanopoulos interviewed South Carolina Rep. Nancy Mace, a survivor of rape, who nonetheless supports Donald Trump’s presidential candidacy.
“You endorsed Donald Trump for president. Judges and two separate juries found him liable for rape and for defaming the victim of that rape,” he pressed, repeating several times the claim that a jury had found Trump liable.
A week later, Trump sued the network and the newsman in federal court in Florida alleging defamation per se and per quod.
ABC moved to dismiss, arguing that Stephanopoulos’s comments were substantially true, and also that Trump was collaterally estopped from claiming that they were false thanks to Judge Kaplan’s rulings. Alternatively they argued that Stephanopoulos’s comments are protected under the fair report privilege as a matter of Florida law.
This morning, Chief Judge Cecilia Altonaga, a George W. Bush appointee, denied that motion.
First she faulted the parties for muddying the issue of choice of law with respect to the collateral estoppel defense.
Curiously, Plaintiff makes his argument “[u]nder New York law” but cites exclusively to federal cases from federal district courts in New York and the Second Circuit. (Resp. 7–8 (alteration added; footnote call number omitted)). Although those cases were tried and decided in New York, their holdings are, for the most part, applications and explanations of federal law and the Federal Rules of Civil Procedure.
She agreed with ABC that the court was bound by 11th Circuit precedent, which allows collateral estoppel as a defense at the motion to dismiss stage. After some side eye about the slipshod reasoning behind the parties’ agreement that New York law governs the analysis, the judge harrumphed that “Because the parties have reached their own consensus, the Court will not disturb their choice.”
Under New York law, collateral estoppel applies when “the identical issue necessarily was decided in the prior action and is decisive of the present action.” But in the prior action, that is the Carroll v. Trump cases, the jury did not find Trump liable for rape. Judge Kaplan said that Trump met the colloquial definition of a rapist in the context of post-trial motions, specifically Trump’s countersuit against Carroll. And those two things are not the same.
In another warning sign for the defendants, Judge Altonaga found that Judge Kaplan’s words had no preclusive effect, even as she conceded that “Defendants may very well convince a reasonable factfinder to follow Judge Kaplan’s reasoning or to adopt other reasoning leading to the conclusion that Stephanopoulos’s statements were not defamatory.”
The court similarly brushed aside ABC’s claim that the statements were substantially true, noting that “Stephanopoulos was not describing Plaintiff’s actions or Carroll’s testimony against him; he was describing the jury’s verdict.” And the jury did not find Trump liable for rape. This was also fatal to ABC’s fair report defense, since Stephanopoulos reported something that never happened.
All of which is rather ominous for ABC. Although his presidential campaign may regret the plan to spend the fall in court litigating whether Donald Trump is a normal rapist or just a digital one.
Trump v. ABC [Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
