Judge who urged Cannon to step aside from Mar-a-Lago case refuses to throw out Trump’s ‘liable for rape’ suit against ABC, Stephanopoulos

The chief judge for the U.S. District Court for the Southern District of Florida who previously made headlines for reportedly urging Judge Aileen Cannon to step aside from Donald Trump’s since dismissed Mar-a-Lago case ruled Wednesday that the former president’s defamation lawsuit against ABC, a case brought because George Stephanopoulos said “more than 10 times” on “This Week” that Trump been found “liable for rape” in the E. Jean Carroll civil case, can move forward.

In May, lawyers for ABC and Stephanopoulos asked Chief Judge Cecilia Altonaga to throw out the lawsuit “with prejudice,” defending Stephanopoulos’ statements as “substantially true,” asserting they were protected by Florida’s fair report privilege, and arguing that Trump’s claims were collaterally estopped.

“In this case, former President Trump seeks to re-litigate a meritless theory of defamation that he has already lost twice in New York. Mr. Trump is collaterally estopped from doing so here,” ABC argued earlier. “And if this Court were to reach the merits, at bottom, this case asserts that even after a jury has found that a person committed a violent sexual assault, it is defamatory to say that the person committed a ‘rape.’ That is not a proposition Florida law recognizes.”

For Altonaga, however, she agrees with Trump’s “position on each” at this point of the litigation.

“To be clear, the Court is not reaching the merits of Plaintiff’s claims. Defendants may very well convince a reasonable factfinder to follow Judge Kaplan’s reasoning or to adopt other reasoning leading to the conclusion that Stephanopoulos’s statements were not defamatory. That is not the issue before the Court now,” the judge wrote first of the collateral estoppel argument. “At this stage, the Court only decides that Defendants have not satisfied their burden to show collateral estoppel should apply, and that collateral estoppel would not be fairly applied in these circumstances.”

Trump’s attorneys have argued that the court need not look much further than the jury verdict sheet in the Carroll case, which checked off “no” as to a rape liability finding.

What the Trump lawsuit did not immediately grapple with, as Law&Crime reported, was what Senior U.S. District Judge Lewis Kaplan said after the verdict in his rulings, particularly that forcible digital penetration is widely understood to be “rape.”

“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,'” Kaplan wrote. “Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.”

From there, Kaplan said the “jury implicitly found Mr. Trump did in fact digitally rape Ms. Carroll.”

During the ABC segment Trump is suing over, Stephanopoulos questioned Rep. Nancy Mace, R-SC, on how she, as a rape survivor, could still support Trump.

When the clash got heated, Stephanopoulos pointed to a Washington Post article on Kaplan’s ruling (not the “no” verdict), headlined “Judge clarifies: Yes, Trump was found to have raped E. Jean Carroll.”

“The judge affirmed there was, in fact, rape. Donald Trump was found to have committed rape,” Stephanopoulos said, as the graphic aired. “That’s just a fact.”

When Mace responded “that is a civil judgment, not a criminal court. They are two different things, and you know better,” Stephanopoulos answered: “I just showed you the facts.”

As a result, the ABC motion to dismiss argued that Stephanopoulos’ citation of the Washington Post article in real-time showed his statements were “substantially true” and were protected by the fair report privilege.

For Altonaga, even if the cases cited by ABC were “compelling,” when viewing the segment “in its entirety and in context, from the perspective of a reasonable viewer,” it’s not so simple, as the fact remains the jury verdict itself said “no” as to a rape liability finding. Furthermore, it wasn’t “clear from the broadcast itself that Stephanopoulos was, in fact, reporting on Judge Kaplan’s findings, rather than the jury’s (or juries’) verdict(s)'”:

Here, of course, New York has opted to separate out a crime of rape; and Stephanopoulos’s statements dealt not with the public’s usage of that term, but the jury’s consideration of it during a formal legal proceeding. Thus, while Defendants’ cited cases are compelling, they are not directly responsive to the issue of whether it is substantially true to say a jury (or juries) found Plaintiff liable for rape by a jury despite the jury’s verdict expressly finding he was not liable for rape under New York Penal Law.

[…]

The Court thus cannot definitively say it was substantially true to report on the (single) jury’s verdict in Carroll II — which did not find Plaintiff liable for rape as that term is defined under New York law — as finding Plaintiff liable for rape.

While again not opining on the merits of Trump’s claims, Altonaga said the case should not be dismissed at this stage because “a reasonable jury could conclude Plaintiff was defamed[.]”

“[A] reasonable jury could interpret Stephanopoulos’s statements as defamatory. Stephanopoulos’s exchange with Mace lasted about ten minutes, during which Stephanopoulos stated ten times that a jury — or juries — had found Plaintiff liable for rape,” the judge wrote. “In fact, of course, the Carroll II jury did not find Plaintiff liable for rape under New York Penal Law; it was Judge Kaplan who determined that the jury’s verdict amounted to liability for rape. Yet, none of these particularities make it into the segment such that a reasonable viewer would have indisputably understood what Defendants now brief in detail.”

ABC’s assertion that it was shielded by the fair report privilege didn’t pass muster either, as the judge found the defendants “have not met their burden of proving” it “applies.”

Altonaga, citing to Alan Dershowitz’s lawsuit against CNN, which initially survived dismissal but is on appeal in the 11th Circuit, noted that the fair report privilege “does not protect media where the omission of important context renders a report misleading.”

“Here, a reasonable viewer — especially one who was aware that Plaintiff had been charged with rape under New York Penal Law — could have been misled by Stephanopoulos’s statements, which did not include the jury’s original findings and only fleetingly referenced the interpretation Judge Kaplan later offered,” the judge wrote.

Trump reacted to the ruling by calling it a “BIG WIN” and by calling Stephanopoulos “LIDDLE’ GEORGE SLOPADOPOLUS.”

Read the order here.

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