In a Miami federal court on Monday, former President Donald Trump sued ABC News host George Stephanopoulos for defamation.
Trump alleges that, during an interview that aired March 10 with Rep. Nancy Mace (R-SC) on This Week With George Stephanopoulos, the host repeatedly said that Trump had “raped” the writer E. Jean Carroll. Trump argues Stephanopoulos’ statements were false and defamatory and that Stephanopoulos should pay Trump money damages.
Trump is a fool, and his lawsuit is both legally flawed and doomed on arrival.
ADVERTISEMENT
During the first E. Jean Carroll defamation trial, the jury expressly found that Trump did not “rape” E. Jean Carroll as the word “rape” is defined under New York state law. In deciding a motion after trial, however, Judge Lewis A. Kaplan found that New York has a narrow definition of rape, requiring “vaginal penetration by a penis)" href="https://urldefense.com/v3/__https://www.blogger.com/blog/post/edit/4454944101251496/7320429341532984652*__;Iw!!LsXw!QdXTEz1LmKWKJhJqRojfNFslonh9GDQSXTuwNFVQE1RYjVMVi2IclZlCO5DBk3maGe-QMFEslshjh4tJybubVLcFAw1Ojo3_vw$">vaginal penetration by a penis.”
The jury seemingly found that Trump’s sexual assault of Carroll involved vaginal penetration by a finger, rather than by a penis, and thus did not constitute “rape” under New York's strict definition. But the conduct did constitute “rape” as that word is more commonly used. Here’s the money quote from Judge Kaplan’s decision:
“[T]he definition of rape in the New York Penal Law is far narrower than the meaning of ‘rape’ in common modern parlance, its definition in some dictionaries, in some federal and state criminal statutes, and elsewhere. The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape.’ Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.”
Given this judicial finding (and, as I’ve previously written)" href="https://urldefense.com/v3/__https://www.blogger.com/blog/post/edit/4454944101251496/7320429341532984652*__;Iw!!LsXw!QdXTEz1LmKWKJhJqRojfNFslonh9GDQSXTuwNFVQE1RYjVMVi2IclZlCO5DBk3maGe-QMFEslshjh4tJybubVLcFAw1Ojo3_vw$">previously written), it is not defamatory to say that Trump is a “rapist.” Trump is a rapist in the common use of the word “rape,” even if he is not technically a rapist under New York law.
The judge in Trump’s new case against Stephanopoulos is not going to ignore Judge Kaplan’s findings. The judge will read what Trump has written in his complaint, and he will read what Trump has chosen to omit from his complaint, and he will conclude that Stephanopoulos told the truth when he said that Trump “raped” E. Jean Carroll.
That truth may be unpleasant, but it is not defamatory.
Trump‘s new lawsuit, however, is not simply legally flawed. Filing the lawsuit also reflects incredibly poor judgment.
The press has already widely reported the filing of Trump’s new defamation lawsuit. When Stephanopoulos files his first motion in that lawsuit, he will argue precisely what I’ve explained above: While Trump did not “rape” Carroll under New York law, because his conduct did not involve “vaginal penetration by a penis,” Judge Kaplan found that Trump did “rape” Carroll in the ordinary meaning of the word, because he vaginally penetrated E. Jean Carroll with his finger (or fingers—I want to be perfectly accurate here, so Trump doesn’t sue me for defamation).
Think about the news coverage of Stephanopoulos’ first motion, and Trump’s response to that motion, and the judge’s ultimate decision resolving that motion. Will any of the headlines even be fit to print in newspapers intended for general circulation? Perhaps “Trump Insists He Didn’t Rape E. Jean Carroll; He Merely Jammed His Fingers Up Her Vagina Without Her Consent.” I’m not so sure that reflects well on our former president.
Stephanopoulos’ interview of Rep. Mace might be relatively quickly forgotten. Trump’s lawsuit about that interview will remind everyone—again and again and again—about Trump’s encounter with E. Jean Carroll.
There’s a name for the stupidity of filing a lawsuit that re-emphasizes an incident that would otherwise be forgotten. In 2003, Barbra Streisand filed a lawsuit complaining about a photographer’s publication of a photo showing her home in Malibu, California. The photo itself would quickly have been forgotten; the lawsuit generated enormous publicity about the photo, compounding any harm it might have done to Streisand. These types of error-compounding lawsuits are thus now known as falling prey to the “Streisand effect.”
Trump is going to lose his lawsuit against George Stephanopoulos. He will have wasted the money that he spent filing and pursuing the case, and he may actually be sanctioned for having filed a frivolous lawsuit.
Even if Trump were to win his lawsuit against Stephanopoulos, Trump probably will have hurt his reputation more than Stephanopoulos’ interview harmed it. Win or lose, Trump is going to repeatedly draw public attention to the fact that he once grossly assaulted E. Jean Carroll in the dressing room of a New York department store.
This week, Trump is complaining that he doesn’t have the money to post the bond necessary to prevent enforcement of the large judgment in the lawsuit that New York Attorney General Letitia James brought against him for business fraud.
If I were short on cash, I don’t think I’d view the defamation lawsuit against George Stephanopoulos as a good investment of my limited funds. Would you?
