Did ABC News settle with Trump to avoid pre-trial discovery?

E. Jean Carroll in 2006. Photo (cc) 2006 by julieannesmo.

Like most observers, I figured that ABC News’ decision to settle a libel suit with Donald Trump for a total of $16 million had more to do with the network’s desire to make a public relations problem disappear than it did with any chance that the network would actually lose the case.

After all, when anchor George Stephanopoulos said on the air that Trump had been found “liable for rape” in a lawsuit brought by the writer E. Jean Carroll, he was merely quoting a federal judge, who said a civil-court jury had indeed found that Trump “raped her” [Carroll] using the everyday meaning of the word rather than the strict legal definition.

But CNN media reporter Brian Stelter raises another intriguing possibility: that ABC’s lawyers wanted to avoid pre-trial discovery. As Stelter reports, ABC didn’t even wait for the judge to rule on whether to grant summary judgment in the case — a routine proceeding in which the defendant asks the judge to find that the plaintiff’s case is so lacking in substance that it ought to be immediately dismissed. Stelter quotes Ken Turkel, a trial lawyer who is representing Sarah Palin in her revived libel case against The New York Times:

“In my experience, when media defendants are unsuccessful at the dismissal stage,” which was in July, “they focus on preparing for summary judgment to challenge the legal sufficiency of a plaintiff’s claim,” he said. “It begs the question as to why ABC settled before the summary judgment stage.”

Turkel also said “you would have to consider” whether the discovery process unearthed emails or other internal ABC data that damaged the network’s case.

Stelter also observes that right-wing media figure Erick Erickson, who’s a lawyer, wrote on Twitter: “No, a $15 million settlement is not the cost of doing business. It is avoiding discovery.”

This makes a great deal of sense. Based on what Stephanopoulos said on the air, his comments were clearly not delivered with actual malice (that is, they were not knowingly false nor reckless), and they were arguably not even false given the judge’s comments. The judge, Lewis Kaplan, went so far as to say that the verdict “establishes against him [Trump] the substantial truth of Ms. Carroll’s ‘rape’ accusations.”

But pre-trial discovery may have revealed internal animus toward Trump from Stephanopoulos and/or others, which Trump’s lawyers might have been able to conflate into actual malice. Combined with Stephanopoulos’ failure to describe the verdict against Trump with 100% precision, ABC’s lawyers may have genuinely feared that Trump had a case he could win in front of sympathetic jury that loathes the media.

Did Stephanopoulos libel Trump? Based on facts that are on the record, the answer is “no.” And I still wish ABC had fought back. But the settlement may have been for a more complicated reason than ABC’s and parent company Disney’s desire to toady to the once and future president.

A tale of two libel suits: ABC News’ shocking abdication, and the end of the line in Everett, Mass.

George Stephanopoulos earlier this year. Official White House photo by Carlos Fyfe.

For this morning, a tale of two libel suits, one national, one local. The national case threatens to undermine protections for journalism that have been in place since 1964. The local case will result in the closure of a weekly newspaper that started publishing 139 years ago.

First, the national lawsuit. On Saturday, ABC News agreed to pay $15 million to Donald Trump in order to settle a libel claim over repeated on-air assertions by anchor George Stephanopolous that a jury had found Trump “liable for rape” against the writer E. Jean Carroll. The money will be paid to Trump’s presidential library and foundation, and Katelyn Polantz report

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The problem is that what Stephanopoulos said was substantially true. The CNN story put it this way: “In 2023, a jury found that Trump sexually abused Carroll, sufficient to hold him liable for battery, though it did not find that Carroll proved he raped her.” And here’s the big “but”: In August 2023, U.S. District Judge Lewis Kaplan found that Trump had, in fact, raped Carroll under the everyday meaning of the word if not under the legal definition. Here’s what Lewis said at the time in the course of ruling on one of Carroll’s defamation proceedings against Trump:

Indeed, the jury’s verdict in Carroll II 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.

I’ll give you a moment to throw up. Now, then, let’s parse this, shall we? A jury found Trump liable for “sexual abuse,” which Judge Lewis ruled was tantamount to being found liable for rape. What Stephanopoulos said was inaccurate only under the most hypertechnical interpretation of what actually happened — and, as I said, Stephanopoulos’ assertions were substantially true, which is supposed to be the standard in libel law. But ABC and its parent company, Disney, decided to appease Trump rather than continue to fight.

And what’s with Stephanopoulos? At 63, he has made many millions of dollars. If he had resigned and continued to fight rather than go along with his corporate overlords, he could have been a hero. Who knows what opportunities would have opened up for him? Instead, he’s content to continue as a highly compensated apparatchik. It’s sad.

By settling with Trump, ABC is following in the path of other corporate titans, a number of whom have donated $1 million apiece to Trump’s inauguration festivities. The donors include Facebook CEO Mark Zuckerberg, OpenAI CEO Sam Altman and Amazon founder Jeff Bezos, who owns The Washington Post.

Under the 1964 Supreme Court ruling of Times v. Sullivan and subsequent refinements, public officials and public figures like Trump need to show that statements they find harmful are false, defamatory and made with actual malice — that is, with knowing falsehood or with reckless disregard for the truth — in order to win a libel suit.

What Stephanopoulos said arguably wasn’t even false, and surely it didn’t amount to actual malice. A deep-pockets defendant like Disney ought to stand up for the First Amendment lest its cowardly capitulation to Trump harm other media outlets without the wherewithal to fight back.

Coming at a time when two of the Supreme Court’s justices, Clarence Thomas and Neil Gorsuch, have publicly signaled that they would like to weaken Times v. Sullivan, ABC’s behavior is shockingly irresponsible.

Local paper to close

Now for the local case. On several occasions I’ve written about an explosive libel suit brought against the weekly Everett Leader Herald by that city’s mayor, Carlo DeMaria.

Unlike the matter of Trump and ABC, you will not find a clearer example of actual malice, as Leader Herald publisher and editor Joshua Resnek testified in a deposition that he’d made up facts and quotes in a campaign aimed at impugning DeMaria’s integrity. That news was broken in January 2023 by Boston magazine’s Gretchen Voss. Indeed, eight months later, Middlesex Superior Court Judge William Bloomer froze assets belonging to Resnek and one of the paper’s owners, Matthew Philbin, because he believed DeMaria was likely to win his case.

The denouement came Sunday when The Boston Globe reported that the suit would be settled for $1.1 million and that the Leader Herald would be shut down as part of the settlement. Globe reporter Maddie Khaw writes:

Resnek, who writes and edits most of the Leader Herald’s articles, has frequently used the nickname “Kickback Carlo” to refer to DeMaria, a moniker representing Resnek’s claims that DeMaria had received illegal payments in real estate deals.

Records show that Resnek has admitted to knowingly reporting falsehoods and fabricating quotes.

“Mr. Resnek wrote what he wrote because he believed Mr. DeMaria was bad for the City of Everett and he was motivated by the fanciful notion that he could bring about Mr. DeMaria’s defeat in the [2021] election for Mayor,” the defendants’ lawyers wrote in court documents.

In fact, DeMaria was re-elected in 2021.

DeMaria and his lawyers will hold a news conference later today. Meanwhile, there is nothing up at the Leader Herald’s website about the settlement, which features several stories that were posted  as recently as this month.

Incredibly, Everett is also the home of two other weekly newspapers, the Everett Independent and the Everett Advocate, both of which are part of small, locally owned chains; neither of them has anything on the settlement, either.

Broadcast nets highlight Trump’s latest Nazi dalliance while newspapers fall short

Assert, deny, project. Repeat. Photo (cc) 2016 by Gage Skidmore.

Whenever Donald Trump erupts with rhetoric that is disturbing and offensive, questions are raised as to whether the media should amplify it. My own view: Yes, usually, although it shouldn’t be repeated over and over to the point at which it drowns out all other news. President Biden is struggling to get his own message out, and surely one of the reasons is that Trump is dominating just about every news cycle — not in a good way, of course, but that hardly seems to matter.

Yet how can we ignore the reality that, on Monday, his campaign promoted Nazi rhetoric on Trump’s own Truth Social platform? Among other things, the 30-second video that was posted refers to “the creation of a unified Reich” and says that Trump will reject “globalists,” code for Jews among the far right. The Trump campaign responded with the usual drivel. According to The New York Times (free link), the response was that the video was shared by a campaign staffer who didn’t notice the Nazi content and that Biden, naturally, is “the real extremist.” The post was reportedly left up for many hours, though it was taken down Tuesday morning. Trump himself has not addressed the matter.

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What’s interesting is that, far from giving the story too much attention, our major mainstream newspapers have actually paid little attention to it. Our three national papers, the Times, The Washington Post and The Wall Street Journal, all published stories about it online. But only the Times saw fit to include it in its print edition, relegating it to page A17 of today’s paper, with no tease on the front. By contrast, there’s nothing on page one or inside the print editions of the Post or the Journal, either today or Tuesday.

Locally, The Boston Globe actually has two stories in its print edition today, as it’s the lead item in its political roundup and the subject of a metro-front story on Biden’s speech in Boston. Neither, though, is on page one.

It seems like a classic case of being caught between news cycles — too late for Tuesday print, too old for Wednesday print. The Nazi story certainly dominated the political conversation on Tuesday, but for casual news consumers who aren’t constantly plugged into social media and cable news, that’s scant consolation. Print still matters, if only as a way for editors to communicate what they think are the most important stories of the day.

The Big Three national evening newscasts actually did better on Tuesday. I downloaded the audio and plugged the files into Otter, which uses artificial intelligence to produce reasonably good transcripts. I also watched a few minutes to fill in the gaps. Here’s what I found:

  • ABC’s “World News Tonight” had a story about 12 minutes into its newscast and stuck with it for almost a minute and a half. It included both the “N”-word (Nazi) and the “H”-word (Hitler) and incorporated Biden’s outraged response. There’s also this straightforward assertion by reporter Mary Bruce: “The Trump campaign is adamant this was not a campaign video, that it was reposted by a staffer who clearly did not see the word while the President was in court. But that video that included three instances of the word Reich remained on Trump’s page for more than 18 hours.”
  • The “NBC Nightly News” actually mentioned the Nazi story three times. Anchor Lester Holt teased it in his opening, and reporter Laura Jarrett referred to it at about the 10-minute mark in beginning her roundup of that day’s Trump-related news before offering a 30-second story at about 11:30. Again, the word “Nazi” is used several times.
  • On the “CBS Evening News,” anchor Norah O’Donnell teased the story about six minutes into the newscast, straightforwardly asserting that the term “Reich” is associated with Nazi Germany. Reporter Robert Costa then offered up some Trump news that provides the most thorough overview of the three networks, pivoting from the post and Biden’s reaction to this: “It’s not the first time Trump has used rhetoric prompting outrage for its echoes of hateful extremists.” That’s followed by some of Trump’s worst comments over the years, from saying that immigrants “are poisoning the blood of our country” to “radical left thugs that live like vermin.”

All of this matters because the three evening network newscasts are the closest thing we have left to a mass medium, with a combined audience of nearly 20 million. By contrast, Fox News, which attracts by far the largest audience of the three cable news stations, has an average of about 2 million viewers in prime time, generally defined as 8 to 11 p.m.

I harbor no illusions that Trump’s latest dalliance with Nazi and antisemitic rhetoric is going to have a lasting effect. It all played out in a manner that we’ve seen over and over: assert, deny and project — and then quietly remove the offending message after it’s accomplished its purpose of assuring the far right that he’s one of them. Stand back and stand by, everyone. It’s going to get a lot worse.

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