Donald Trump’s total humiliation of ABC News over its most recent slander, delivered through the flapping gums of malignant dwarf George Stephanopoulos, was one of those delicious examples of how the New Rules keep coming around to bite the left on its collective fourth point of contact. Even a decade ago, this would not have happened. Defamation cases, particularly against public figures, were almost impossible to win and were less about money than about enraged plaintiffs tormenting those who talked bad about them. But that’s all changed. There’s big money at stake now. The left decided it was going to use legal civil lawfare, as well as criminal lawfare, to take out in court the opponents it couldn’t take out in the public square. This initiative worked for a little while. Now, they’ve got a problem. We’re doing it to them. And it’s only going to get worse for them.
Let’s talk about defamation. Without getting too far into the weeds, the elements of a defamation claim are generally that a person makes a false and derogatory statement that causes the victim damage. I do have one pet peeve, which is kind of fussy and lawyerly. People often say that truth is a defense to a defamation claim. That’s not always true. At least in California, falsity is an element of the claim. If falsity is an element, the plaintiff must prove it. A defense is something a defendant must prove. If it’s a defense, the defendant must prove the statement is false. Whether it’s an element or an affirmative defense varies between jurisdictions, and it’s probably not important to this column, but it’s important to me as a lawyer.
What happened in this case was that Stephanopoulos decided to insist, on his largely unwatched Sunday morning show, that Donald Trump had been found liable for rape. Obviously, being called a rapist is derogatory, unless you’re a prominent Democrat donor. What Clinton’s brunette Oompa-Loompa was referring to was that weird woman in New York who accused Trump of molesting her in a department store dressing room 30 years ago. This ridiculous case, made possible by a bunch of obnoxious legal maneuvers, was cooked up largely by the left as a way to trash Trump. In any sane society, a three-decade-old she-said allegation without a single shred of any kind of supporting physical or other evidence would’ve been laughed out of court. But things don’t get laughed out of court anymore in a venue where 90% of the jurors are your political opponents and where the judge not only drops the ball but fires it into the center of the Earth with a cannon.
Recommended
The myriad details of why and how this ridiculous lawsuit got to the point of a verdict against Trump are beyond the scope of this column – I’d put money down that it’s not going to survive the appellate process, at least in anything remotely like its present form of an $83 million judgment. What does matter here is what the jury found. The jury had a written verdict form where it was specifically asked if Trump was liable for rape. The jury found he was not. It did find he was liable for sexual assault. So, a key legal question is falsity – did George Stephanopoulos make a false statement about Trump when he said Trump was found liable for rape when Trump was only found liable for sexual assault? Rape and sexual assault are different things. If they weren’t different things, there wouldn’t have been different questions regarding those findings on the verdict form. They also would not have had different instructions as to how the jury was to rule on them. But the judge came along later and, for no good reason, opined that sexual assault was actually rape. That was ridiculous, and dumb people have been claiming that this gratuitous dicta is somehow an actual determination. It isn’t.
So, Little George runs his mouth and Trump sues him and ABC as well. And this is an important part – he sues them in Florida. Florida, for those of you who are not paying attention, is definitely not blue New York.
Last weekend, ABC rolled over. It agreed to pay $15 million to the Trump library fund, $1 million to his attorneys for their legal fees, and to offer a written clarification that, in fact, Trump was not held liable for rape. The regime media freaked out, accusing ABC News of bending the knee to the Bad Orange Man. And you know what? ABC totally bent the knee to the Bad Orange Man.
The question is why, and this is where the New Rules come into play, in my humble opinion. And why do I have a humble opinion? Before winding down my full-time work as a trial lawyer this year, I spent 30 years as a civil litigator. I won money millions for defamation plaintiffs and beat big cases against defamation defendants – including one you know.
So, here’s what I think, though I had nothing to do with this case, and I don’t have any inside information. First, you need to understand that this case was never a slam dunk for Donald Trump. It wasn’t a slam dunk for ABC, either. Putting on my defense attorney hat, there are lots of ways I could’ve fought this case. Yes, it was false that Trump was held liable for rape. There is some squishiness about how the sexual assault finding would relate to that. There are also some actual malice arguments they could make. “Actual malice” is a term of art in defamation cases involving public figures which requires either knowledge of the falsity of the statement or a reckless disregard for the truth. It comes from the case of New York Times vs. Sullivan, and the rule means that most defamation cases brought by famous people fail, floundering on the rocks of actual malice, and no one’s more famous than Donald Trump.
A lot of people are opining that ABC settled to avoid discovery. That’s probably part of it. Discovery is a process where you can depose individuals, demand written answers to questions, and demand the production of documents. Those documents could’ve been very, very embarrassing. People put the most horrendous and incriminating things in writing, and that’s all discoverable. The deposition of the tiny TV man would’ve been glorious. Who knows what would’ve come out? Discovery is very broad, and people regularly go on fishing expeditions to see what dirt they can dig up. Do you think ABC would want to dig up and turn over every single communication regarding the Trump ambush debate? Those emails, texts, and voicemails are relevant to the actual malice issue since they might well show ABC’s institutional actual malice toward Trump. It’s a big factor, but I think there’s another factor that’s even more compelling.
Money.
The left has run up the value of civil lawsuits against their enemies. Though it wasn’t a defamation case, the State of New York got a judgment for hundreds of millions of dollars in a legally frivolous civil lawsuit against Donald Trump‘s company. There was also the Carroll verdict referred to above against Trump himself. Rudy Giuliani was hit with a huge multimillion-dollar award in a defamation case involving some Georgia election workers. Alex Jones got crushed by the multimillion-dollar judgment in his case. And Fox News famously settled, for hundreds and hundreds of millions of dollars, a civil lawsuit by Dominion that the left had hoped with bankrupt the company.
So, what was ABC looking at? ABC was looking at a case it could lose in a venue favorable to Donald Trump. And if I was Donald Trump‘s lawyer – and I am not Donald Trump‘s lawyer – I would’ve looked at the jurors and told them that the only way they could correct the horrible wrong that George Stephanopoulos had inflicted upon Donald Trump by falsely stating that he was an adjudicated rapist is to give him $1 billion. And you know what? I might’ve got $1 billion. I bet you that I’d have got at least $100 million. Is that because I am the greatest lawyer who ever walked the Earth? No. It’s because that’s what we do now. That’s the New Rule. Civil lawsuits are not about fairly and reasonably compensating the wronged individuals for the real damages they suffered. That was the Old Rules, when lawsuits were about justice. Now, they are about nuking your political enemies from orbit.
ABC, in conjunction with its insurers, understood not just that it was going to be embarrassed by what came out in discovery but that it was faced with a Mount Everest-sized potential jury award from those Florida knuckle-draggers who couldn’t figure out how to get off of jury duty. And they also had to understand that the appellate process might not save them – several conservative members of our current Supreme Court are just looking for an excuse to get rid of Sullivan.
Oh, well. I guess the New Rules aren’t working out quite the way the left had hoped. A lot of people have told the same lie as George Stephanopoulos and a whole bunch of other lies as well, and I look forward to many, many more lawsuits in courthouses out in red America.
Donald Trump will be the 47th President of the United States, but our fight to make America great again is only just beginning, and we need your help to keep telling the truth! Join Townhall VIP right now to get access to my extra Wednesday column, the weekly Stream of Kurtiousness videos every Friday, my Unredacted podcast every Monday, my VIP members-only direct email address, and more! Use promo code FIGHT for 60% off a membership!
Follow Kurt on Twitter @KurtSchlichter. Get the newest volume in the Kelly Turnbull People’s Republic series of conservative action novels set in America after a notional national divorce, the bestselling Amazon #1 Military Thriller, Overlord! And get his new novel about terrorism in America, The Attack!
Join the conversation as a VIP Member