A s I’ve mentioned a number of times, among the wisest things I was ever told about the legal system when I was a young lawyer is that courts are not in the poetic-justice business — good judges do only prosaic justice, which is hard enough to do well.
George Stephanopoulos was a key player in the Clintons’ character-destruction project against women who claimed that Bill Clinton had been sexually aggressive toward them. Admittedly, then, I would shed no tears if he got some comeuppance after expressing his sudden, precious concerns about women who claim to have been sexually abused — by Donald Trump, of course, not by Clinton.
As a matter of law, though, Trump’s defamation lawsuit against Stephanopoulos is a dud. Given the cash crunch the former president is in, I hope he didn’t pay his lawyers too much to file it.
As ever, Stephanopoulos is a Democratic operative. I don’t have much sympathy for such loose cannons as Congresswoman Nancy Mace (R., S.C.), another in the long line of Republicans who enthusiastically accept invitations to appear on television with Stephanopoulos — thus contributing to the charade that he is an objective journalist — only to find themselves burned when he inevitably goes partisan on them. Yet Mace, a Trump supporter, has reported being a rape victim. Hence, it was not just wrong but appalling for Stephanopoulos, of all people, to use that against her just to make a cheap partisan point against Trump — to wit, how could Mace, of all people, support Trump when “judges and two separate juries have found him liable for rape?”
This is the assertion that Trump alleges is defamatory — further noting that Stephanopoulos repeated the “liable for rape” description a number of times. There is nothing stupid about Stephanopoulos, so I’m sure he knew what he was saying was inaccurate. Nevertheless, inaccurate is not the same as false, which I don’t believe the partisan commentator’s statement was. Trump, moreover, did not suffer any material harm. On these facts, I don’t believe there would be a viable defamation case against Stephanopoulos even if Trump weren’t a public figure — i.e., a prominent person for whom our law makes it very difficult to prove defamation. In that context, an allegedly defamatory statement is not actionable unless it is not merely false but made with actual malice or reckless disregard for the truth.
Contrary to Trump’s insistence, there was no jury finding in last year’s first E. Jean Carroll trial that he had not committed rape. As the verdict sheet shows, the jurors were presented with three different torts involving sexual aggression that Carroll claimed Trump had committed against her about 30 years earlier — rape, sexual abuse, and forcible touching. The torts were part of a single civil claim (i.e., Carroll only needed to establish one of them to prevail), and they were listed in descending order of severity: Rape includes sexual abuse and forcible touching; sexual abuse includes forcible touching. Ergo, once the jury found one tort proven, it did not need to consider less serious ones.
The jury was instructed to apply the civil standard of proof, preponderance of the evidence. This is a burden significantly easier to meet than the criminal standard, beyond a reasonable doubt. The distinction is salient because Democrats and other anti-Trumpers have taken to saying Trump was “convicted” of rape or sexual abuse. He wasn’t convicted of anything. It was a civil case in which a small jury (nine people, not twelve) unanimously found that he was liable; he was not found guilty — that’s a finding made in criminal cases.
Under the civil standard, the jury found that Carroll did not prove that Trump had raped her — not that a rape didn’t happen, but that rape wasn’t proved. This is not a niggling difference. It’s important because the jury went on to find that Trump sexually abused Carroll. Consequently, the jury did not need to answer the question of whether Trump forcibly touched Carroll; as the law was presented to them, the jurors could not have found sexual abuse absent finding forcible touching.
Trump would have you believe that the jury outright rejected the rape claim. That’s spurious, especially in light of the sexual-abuse finding and the relevant testimony.
Carroll’s claim of a forcible sexual encounter was supported by no forensic evidence. It was basically Carroll’s testimony, corroborated to a limited extent by two friends who recalled that she had reported the incident fairly contemporaneously. Beyond that, Judge Lewis Kaplan controversially allowed “propensity” evidence — the testimony of two women who claim to have been subjected to unwanted sexual aggression by Trump (kissing and groping, but no claims of rape), and the notorious Access Hollywood tape, in which Trump is heard bragging about being sexually aggressive with women, including claiming that, because he’s famous, women let him “grab them by the p****.”
Probably more damaging, though, was that, while Trump can’t stop talking about Carroll and heatedly denying her story seemingly everyplace else on the planet, he couldn’t bring himself to show up at the trial and tell the jury his side of the story under oath. As a result, this being a civil case, the jury (which had to show up every day and undoubtedly wondered why Trump didn’t) was instructed that it could draw a negative inference against him — i.e., it could infer that if Trump had had a compelling response to Carroll’s claims, he would have come to court and provided it.
Trump was thus found liable for sexual abuse and one instance of defamation, and the jury awarded Carroll $5 million (roughly $2 million on the former and $3 million on the latter).
Now, we generally presume that juries are not irrational. Here, the finding of sexual abuse is logical only if the jurors found Carroll credible and concluded that Trump’s abuse included forcible touching.
On the latter score (and please cover the kids’ ears at this point), Carroll’s testimony was equivocal on the matter of how Trump allegedly penetrated her. She said that in the chaotic struggle that went on for several minutes, she was sure there was penetration but wasn’t certain whether it was just his fingers, his penis, or both. Further, she related that she managed to push him away and get out of the Bergdorf Goodman fitting room in the middle of all this (i.e., she discerned no ejaculation or other certain indicator of sex-organ penetration). Add to this that the two other alleged victim witnesses did not claim that Trump tried to rape them and that Trump, in the Access Hollywood tape, claims to have grabbed women’s genitalia but not to have raped anyone.
Marshaling this evidence when he denied Trump’s posttrial motions, Judge Kaplan reasoned that the jury had credited Carroll’s testimony that Trump penetrated her digitally. Rejecting Trump’s claim that the jury had found he did not commit rape, Kaplan observed that the jury had not found rape in the narrow sense of New York statutory law, which defines the act as including penile penetration; however, statutes in many other states, as well as federal guidelines, have expanded the definition of rape to include (among other things) digital penetration. Kaplan concluded that there was little or no daylight between the popular understanding of “rape” and what the jury had to have found Trump did.
As for Stephanopoulos’s less explosive claim that a finding of rape had been made by “two separate juries,” this, too, is better understood as inaccurate than false. Only the jury in the first Carroll trial found Trump liable for sexual abuse. The second jury was not asked to make such a finding; it was limited to assessing monetary damages based on two defamation claims (separate but substantially indistinguishable from the defamation claim in the first trial). Still, the staggering $83.3 million judgment can only be rationalized if we conclude that the jury believed that Trump was slandering Carroll by accusing her of falsely claiming sexual abuse. Ergo, although the second jury did not find Trump liable — for rape or sexual abuse — its verdict implicitly reflects a conclusion that sexual abuse occurred (which is what Judge Kaplan instructed them to assume, based on the first jury’s verdict).
Given the jury’s verdict, the legal instructions on which it was based, and the elaboration on it by Judge Kaplan in formally denying Trump’s motions, there is no solid defamation claim to be derived from Stephanopoulos’s statements.
In fact, given that Stephanopoulos was relying on Kaplan’s reasoning, he could plausibly contend that his statements were accurate. And given that there is, at best, a microscopic difference between saying that Trump was found “liable for rape” (as Stephanopoulos did) and saying that he was found “liable for sexual assault that involved forcible touching” (which is true), it is impossible to see how Trump was damaged by Stephanopoulos’s remarks. Ditto Stephanopoulos’s reference to findings by two juries rather than one: The second jury may not have formally found sexual abuse, but if it had discounted sexual abuse, its $83.3 million verdict would make no sense.
If Trump can’t show damages, there would be no case even if he could prove defamation, which he can’t. Indeed, Trump’s lawsuit is foolish — not only because it’s going to cost him more in legal fees and expenses at a time when he can ill afford it, but because it will invite more attention to what the juries, especially the first one, actually found. Contrary to Trump’s revisionism, those findings are condemnatory, not exculpatory.
Of course, Stephanopoulos should apologize. If he were a straight journalist rather than a partisan hack, he would. No, technically, he didn’t defame Trump; but he knows that what he said was a stretch, and he did it repeatedly because he is trying to brand his party’s nemesis with the word “rape.”
As for Trump, he should stop talking about Carroll, which has proved an expensive proposition for him, and stop calling attention to the Carroll trials because a faithful recounting of them does not flatter him, to put it mildly.
I happen to believe that Trump might very well have prevailed in the first trial if he had had the gumption to get in the witness box, take the oath, look the jury in the eye, and deny Carroll’s story with the passion he usually reserves for media appearances and political rallies. He appeared ready to display that passion in the second trial; but, as was bound to happen, Kaplan did not allow that because, under long-standing legal principles, the time to do that was the first trial.
To be clear, I am not saying that I think Carroll is lying. I have no idea who is lying: I’m troubled by aspects of Carroll’s story and her flippant manner of discussing it in media appearances; but then again, if I were Trump and I’d been falsely accused of rape, nothing could have prevented me from attending every moment of the trial and denying the allegation as forcefully as I could.
Rather, as someone who used to try cases for a living, I am simply saying that Carroll’s case is weak (which doesn’t make it untrue). If Trump had vigorously contested it, and if the jury had thus not been told it could draw a negative inference against him, the outcome would likely have been different — the weaknesses of Carroll’s quarter-century-old, substantially uncorroborated story would have been elucidated if Trump had convincingly denied it in court, under oath.
But he didn’t. He defaulted. It was a political calculation. He hoped his lawyer could dismantle Carroll’s testimony on cross-examination. When that didn’t happen, he figured his presidential campaign could tolerate a loss that he would explain away by saying he had refused to participate in a proceeding that Democrats had rigged against him. But his campaign could not risk a loss if he had fought the case hard — it would look like, and be incessantly reported that, the jury believed Carroll, not Trump.
Stephanopoulos knows better than to say what he said. Still, if lots of people believe that Trump was found liable for rape, it’s not because of Stephanopoulos. It’s because Trump didn’t show up to contest that allegation when it counted.