The Trump settlement with ABC News sets a dangerous precedent for defamation law

Cases settle all the time and yet ABC's settlement of a defamation suit with Donald Trump is deeply disturbing. It was announced on Saturday, Dec. 14, that ABC News would give $15 million to the Trump presidential foundation and pay $1 million to Trump in attorneys' fees in exchange for the end of the litigation. ABC News also apologized, saying they "regret" the remarks made about Trump.

From a legal perspective, Trump's defamation claim was very weak. Trump frequently has filed defamation suits in the past, which consistently have failed, including against CNN, The New York Times and The Washington Post. Here, though, ABC caved rather than continue the litigation. My fear is that publicity around this settlement will achieve exactly what Trump wants: to chill the media in its critical coverage of him.

The defamation case was based on an interview between ABC by George Stephanopoulos and Representative Nancy Mace, a Republican from South Carolina. Stephanopoulos questioned Mace, a survivor of rape and an outspoken advocate for survivors of sexual assaults, about her endorsement of Trump. In the interview, Stephanopoulos said that "Donald Trump has been found liable for rape by a jury. Donald Trump has been found liable for defaming the victim of that rape by a jury."

Trump sued for defamation on the ground that he had not been found liable for rape. But he had twice been found liable by a jury of sexual battery against Carroll.

In May 2023, a jury found that Trump sexually abused Jean Carrol and awarded $5 million for battery and defamation. The judge, in August 2023, dismissed a countersuit by Trump and said that the claim Trump raped Carroll was "substantially true." The judge wrote that Trump "raped" her in the broader sense of that word, as people generally understand it, though not as it is narrowly defined by New York state law.

Federal district court judge Lewis A. Kaplan wrote that "[t]he definition of rape in the New York Penal Law is far narrower than the meaning of 'rape' in common modern parlance, its definition in some dictionaries, in some federal and state criminal statutes, and elsewhere." Kaplan emphasized this did not mean Carroll "failed to prove that Mr. Trump 'raped' her as many people commonly understand the word 'rape.'" To be more specific, Kaplan explained that the jury found that Trump sexually penetrated Carroll with his fingers and without her consent, sufficient for rape under federal law but not New York law. Indeed, what Trump did, as Judge Kaplan recognized, generally would be regarded as rape.

In January 2024, Carroll was awarded $83.3 million in damages for defamatory statements that Trump made that disparaged her and denied her sexual assault allegations. Both of the verdicts against Trump are on appeal.

In light of these findings, it is very difficult to see how Trump could have prevailed in his defamation suit against ABC News. In New York Times v. Sullivan (1964), the Supreme Court held that for a public official to recover for defamation, the plaintiff must prove with clear and convincing evidence that the defendant's statement was false and that it was uttered with "actual malice" - that is that the defendant knew the statement was false or acted with reckless disregard of the truth.

In St. Amant v. Thompson (1968), the Court said that to prove actual malice a plaintiff must show that the defendant spoke with a subjective awareness of probable falsity. The Court explained: "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."

 In Gertz v. Welch (1974), the Court said that a public figure suing for defamation must meet the same exacting standard:  showing that the defendant knew the statements were false or acted with reckless disregard of the truth.

It is hard to see how it can be said that Stephanopoulos spoke with actual malice.

Two juries found that Trump sexually assaulted Carroll and a federal judge said that the claim that Trump raped Carroll was "substantially true." 

I, of course, do not know why ABC News settled. My guess is that ABC News settled the suit to make it go away, especially with depositions of Trump and Stephanopoulos that were scheduled for this week. ABC News likely also felt it to their advantage to not be involved in contentious litigation with the President-elect.

It is certainly ABC's right to choose to settle rather than to litigate. But there is a real cost to ABC's caving in and settling a suit with little legal merit. It encourages defamation suits by Trump and others even when they have no basis under the law. It makes it seem that Trump was wronged, despite two juries finding he committed a sexual assault against Carroll. It likely will cause those reporting about Trump to hesitate before making critical statements for fear that they might lead to defamation liability. That is exactly what Trump wants, as he repeatedly has said that he wants defamation law changed to make it easier for plaintiffs to prevail.

The settlement is also disturbing because it extends the Trump's election serving as a "get out jail free" card for him. Special Counsel Jack Smith already has moved to dismiss the two federal prosecutions of Donald Trump for his role in the Jan. 6 insurrection and his violating federal law in the handling of classified documents. Trump has moved to dismiss his New York convictions on the ground that he cannot be held criminally liable as president of the United States. And now ABC has given in to him in his civil suit.

The core of the rule of law is that no one, not even a president or former president, is above the law. The ABC News settlement with Trump is just the latest example of how this does not apply to Donald Trump.