Thomas G. Moukawsher

ABC’s $15 Million Obeisance to Donald Trump | Opinion

Thomas G. Moukawsher

Published Dec 16, 2024 at 11:48 AM EST

Donald Trump has always been America’s Lawfare King. He delayed and defeated cases against him for using fraud, threats, and force to try to steal the 2020 election and for absconding with vital U.S. secrets. He exploited the foolishness of the lesser fraud cases that were allowed to proceed in New York, coming out looking like the victim.

But now we have reached a darker day in Trump lawfare. ABC News has made a $15 million pay off demanded by a president in a patently frivolous case. It’s not enough that self-interested sycophants are likely booking up his hotels and golf courses and gobbling up his gold watches, sneakers, and bitcoin. Now Trump is being rewarded for bringing one of his many meritless claims against the mainstream media for failing to kiss the ring.

In the lawsuit, Trump claimed George Stephanopoulos of ABC News slandered him by stating that Trump had been found liable for rape during the E. Jean Carroll civil case in New York. The settlement payment was accompanied by an apology and a further $1 million payment to cover Trump’s attorney’s fees in the case.

But there was no case to settle. Thanks to the First Amendment, comments about public officials and public figures are protected under civil damage laws in cases where lies are said to damage reputations. Under a famous case called New York Times v. Sullivan, these public-facing people can’t recover damages without proving that the accused party recklessly disregarded the falsity of what they were saying.

So, did Stephanopoulos recklessly disregard some truth here? He said Trump was found liable for rape. But, as Trump knows, he was on firm ground in saying it.

When E. Jean Carroll told people she had won her civil claim for rape against Trump, Trump sued her for defamation much as he sued ABC News for the same words. In dismissing Trump’s case against Carroll, the judge found: “It accordingly is the ‘truth,’ as relevant here, that Mr. Trump digitally raped Ms. Carroll.” Truth is an absolute defense in a defamation case.

On that ground, any first-year law student could have defeated Trump’s suit against ABC News. But it gets worse. Defamation lawsuits are about harm to reputation. To win, Trump would have had to prove that Trump’s campaign for president or business reputation was harmed by Stephanopoulos’s remark. But why did his remark matter so much? Lots of people were—correctly—saying the same thing. And more important, Trump won the 2024 election despite what Stephanopoulos and others were saying, and now Trump’s business empire is—sickeningly—better off than it has ever been.

The ABC case should have ended the same way Trump’s frivolous lawsuit against Hillary Clinton ended. Trump falsely alleged a Clinton-FBI conspiracy against him concerning his Russian connections. Not only was the lawsuit dismissed last year, but Trump was ordered to pay nearly $1 million after the court labelled it “completely frivolous” and called Trump a “mastermind of strategic abuse of the judicial process.”

So, what’s left to explain ABC’s spinelessness? Why did The Washington Post and Los Angeles Times scrap plans to make presidential endorsements in the last election? Why did Mark Zuckerberg‘s Meta and Jeff Bezos‘s Amazon each decide to give $1 million to Trump’s inauguration committee? It’s not as if people haven’t cozied up to presidents before, but this time feels different. Companies currying favor have been replaced with those reacting to a climate of fear—of punishing lawsuits, of punitive regulatory reactions—fear that democracy is being replaced by a kind of klepto-feudalism.

It’s only going to get worse unless people fight back. Strategic Lawsuits Against Public Participation (SLAPP suits) have been around for years. Not coincidentally, they are a favorite of real estate developers stifling public criticism of planned developments. The idea isn’t to win. It’s to bankrupt your opponent with legal fees. Many states have special procedures for disposing of such frivolous suits quickly and inexpensively. Where these laws don’t exist, judges have the power to consolidate motion practice, tightly control discovery, and grant early summary judgments. Judges should use these tools, and lawyers should volunteer to protect victims. If they don’t, the bullying and extortion will increase exponentially.