ABC Settles With Trump in a Case It Could Have Won

Content warning: This article discusses the details of sexual assault.

The interview (This Week, 3/10/24) that cost ABC $15 million.

ABC has agreed to pay $15 million to President-elect Donald Trump’s presidential library and $1 million toward Trump’s legal fees “to settle a defamation lawsuit over anchor George Stephanopoulos’ inaccurate on-air assertion that the president-elect had been found civilly liable for raping writer E. Jean Carroll” (AP, 12/14/24).

Fox News (12/15/24) gloated that “Stephanopoulos and ABC News also had to issue statements of ‘regret’ as an editor’s note” on the online version of the offending piece (This Week, 3/10/24). The note reads:

ABC News and George Stephanopoulos regret statements regarding President Donald J. Trump made during an interview by George Stephanopoulos with Rep. Nancy Mace on ABC’s This Week on March 10, 2024.

This settlement is a dangerous omen for press freedom, given Trump’s threats to use his power to go after his media critics (NPR, 10/23/24; CNN, 11/7/24; PEN America, 11/15/24; New York Times, 12/15/24; Deadline, 12/16/24).

‘Common modern parlance’

Washington Post (7/19/23): Judge Lewis Kaplan “says that what the jury found Trump did was in fact rape, as commonly understood.”

Trump has been found liable for defaming and sexually abusing Carroll in two cases, both of which he is appealing (Politico, 9/6/24). “Donald Trump has been found liable for rape by a jury,” Stephanopoulos said (ABC, 3/10/24). “Donald Trump has been found liable for defaming the victim of that rape by a jury. It’s been affirmed by a judge.”

However, there is a legal difference between “sexual abuse” and “rape” under New York law. The jury found that Trump had violated Carroll with his fingers, not with his penis, and thus the incident was legally classified as sexual abuse, not rape (USA Today, 1/29/24).

However, as the Washington Post (7/19/23) reported:

The filing from Judge Lewis A. Kaplan came as Trump’s attorneys have sought a new trial and have argued that the jury’s $5 million verdict against Trump in the civil suit was excessive. The reason, they argue, is that sexual abuse could be as limited as the “groping” of a victim’s breasts.

Kaplan roundly rejected Trump’s motion Tuesday, calling that argument “entirely unpersuasive.”

The Post continued:

“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,’” Kaplan wrote.

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.”

In other words, Stephanopoulos’ initial description was not legally accurate, but was instead relying on the popular understanding of the word, according to the judge overseeing the case.

Legally perplexing

Human rights lawyer Qasim Rashid (Newsweek, 12/15/24): “This is the cowardice of legacy media out to make profit, rather than uphold principle.”

For most journalists, such an offense isn’t nothing: Journalists should always be as accurate as possible, and when they do slip up, they should issue corrections. He should have used the most accurate terminology the court used.

But should this mistake cost the network $16 million, most of which will be used to prop up the legacy of the person who made the complaint, a former president on his way back to power?

Newsweek (12/15/24) noted that it was legally perplexing for ABC to settle so early: “Legal experts also criticized the broadcaster for settling the lawsuit before depositions were due to take place,” it explained. The piece quoted former prosecutor Joyce Vance:

I’m old enough to remember—and to have worked on—cases where newspapers vigorously defended themselves against defamation cases instead of folding before the defendant was even deposed.

Because this case never went to trial, we will never know if there was any evidence of actual malice or reckless disregard for the truth in this misreporting, as would be required to secure a defamation reward under New York Times v. Sullivan (Knight First Amendment Institute, 3/18/24). And while correcting the record seems reasonable for ABC, forking over millions in cash that could be otherwise used to employ teams of working journalists seems excessive.

Newsweek (12/15/24) also covered some of the backlash to the deal:

Democratic attorney Marc Elias wrote: “Knee bent. Ring kissed. Another legacy news outlet chooses obedience.”

Reporter Oliver Willis also chimed in, writing on Threads: “This is actually how democracy dies.”

Tech reporter Matt Novak said: “Not good for the rest of us when you do this shit, ABC.”

“But that’s probably half the point from management’s perspective,” he added Saturday.

A warning to other media

“The First Amendment was drafted to protect the press from just such litigation,” attorney Floyd Abrams told CNN (11/1/24). “Mr. Trump may disagree with this or that coverage of him, but the First Amendment permits the press to decide how to cover elections, not the candidates seeking public office.” 

The fact that the network is coughing up money as a result of Trump’s case sends a warning to other media that no media will be safe under a Trump regime. Trump has also sued CBS, “demanding $10 billion in damages over the network’s 60 Minutes interview with Vice President Kamala Harris.” His suit alleges that the Harris interview and “the associated programming were ‘partisan and unlawful acts of election and voter interference’ intended to ‘mislead the public and attempt to tip the scales’ of the presidential election in her favor” (CNN, 11/1/24).

If continuing the CBS lawsuit sounds petty in light of the fact that Trump won the election, that’s because it is petty. But protracted litigation could inflict real damage on the network. Fox News (12/13/24) bragged that the “CBS suit could potentially impact an enormous media merger.” As we know, Trump hates journalists, and is vowing to go after them when he gets back into power (FAIR.org, 11/14/24).

To be fair, this strategy, which is meant to create a chilling effect on speech, can backfire on Trump, as when he was ordered to “pay nearly $400,000 in legal fees to the New York Times and three investigative reporters after he sued them unsuccessfully over a Pulitzer Prize–winning 2018 story about his family’s wealth and tax practices” (AP, 1/2/24). That’s all the more reason why ABC should be fighting this dubious claim by Trump.

The New York Post editorial board (12/15/24) saw this as a big win for Trump, noting that Stephanopoulos had used the R-word several times in the segment:

The law gives even public figures some rights against such smears; if the case had proceeded, Trump’s legal team would’ve been able to access ABC News’ internal communications in order to prove the network’s reckless attitude toward the truth.

Trump was actually quite magnanimous in not making ABC pay him the settlement, even if the deal makes the company by far the largest donor to the Trump library.

Conservative legal commentator Jonathan Turley (Fox News, 12/16/24) speculated that ABC’s owner, Disney, likely wanted to start off on a better foot with a new Trump administration. “Disney is trying to adopt a more neutral stance after years of opposition to its stances on political issues and accusations of ultra-woke products,” he said. With “networks like MSNBC and CNN in a ratings and revenue free fall after the election, Disney clearly wants to start fresh with the new administration.”

In reality, ABC’s capitulation may have less to do with ratings and more to do with the GOP takeover of all three branches of federal power. Trump’s avowed plan to reward his friends and punish his enemies could force so-called “liberal” media into being more cheerleaders than a check on political power.

Even before the election, FAIR (10/25/24, 10/30/24) noted how the owners of the LA Times and Washington Post stepped in to keep their editorial boards neutral in the presidential race. In the case of the LA Times, owner Patrick Soon-Shiong has reportedly continued after the election to soften the paper’s editorial voice, a move that has “concerned many staff members who fear he is trying to be deferential to the incoming Trump administration” (New York Times, 12/12/24).

Now that Trump and his legal army see that at least one network will simply pay to have a legal complaint go away, they may feel emboldened to go after others. That could put a damper on critical coverage of the federal government when Americans need it the most.