Trump gets to proceed with two different defamation cases, for now; Hunter Biden seeks to rely on Aileen Cannon; Judge Arthur Engoron suffers in a new and surprising way.
I sense that the ABC apologetic press release would not be the end goal of the legal strategy...
Oct 25 2024
For immediate release:
ABC News apologizes for the claim that Donald Trump raped E Jean Carroll. On January 26, 2024 a jury of Donald Trump's peers listened to the evidence presented and judged that Donald Trump committed Sexual Assault on E Jean Carroll, not rape. To reiterate, Donald Trump did not rape E Jean Carroll when pinning her against a wall against her will, it was determined in a court of law to be a Sexual Assault.
When George Stephanopoulos, mentioned 10 times that Donald Trump raped E Jean Carroll he should have instead stated 10 times that a jury of his peers concluded Donald Trump Sexually Assaulted E Jean Carroll.
ABC News regrets the error in not correctly identifying that Donald Trump was convicted by a jury of his peers to have committed Sexual Assault.
This case seems strange to me because it seems odd that if I describe a crime as "rape," and that particular behavior is a crime in all 50 states and is named "rape" in some of those states, that I would be guilty of defamation.
Suppose a very bad man in Florida grabs a woman, and non-consensually sticks his penis in her. He is arrested and convicted for this act. The victim says, "I'm glad my rapist was convicted of rape by a jury."
Does the rapist get to sue her for defamation because Florida, like many other states, does not have a crime named "rape," even though most people would call that crime "rape"? Are there no rapists in Florida because Florida doesn't have a crime named "rape"?
I certainly have no idea, but one difference (if I understand what J&K said) is that since NY does have a rape statute that Trump was specifically found not liable for, it could be different from describing an actual conviction using a colloquial term as shorthand.
1) I can't call anyone a rapist in Florida because there is no crime named rape in Florida, or
2) I can call involuntary penis penetration a rape in Florida and I can also call an involuntary digital penetration in Florida a rape, because there is no crime named rape in Florida but involuntary penetration by finger or penis is called rape in some other states and in colloquial use, but I can't call involuntary digital penetration a rape in New York.
Both of these seem wrong to me. They seem to assume an intimate familiarity with state laws that basically nobody has.
#2 seems reasonable to me with the huge caveat that you can call digital penetration rape in either state but you can't say "you were found liable for rape" in the one place where a rape conviction (using those terms) is a thing.
But yes, this maybe doesn't make sense if, in NY, a rape claim isn't part of the litigation and so the person describing it could be unaware that there is a separate rape statute.
I think you're both missing the point that Ken was making.
The issue is not whether you can call what Trump did "rape". You can. What you can't do is say (or at least it is a triable issue on whether you can say) "the jury in NY found him liable for rape". The first is describing Trump's conduct. The second is describing the jury's conduct.
It's not that you need to know the particulars of a state law in order to describe its conduct. It's that you need to know the particulars of a legal proceeding if you're describing what happened in that legal proceeding.
By comparison, if someone was convicted of manslaughter, I could say "He murdered that person". What I couldn't say is "the jury found him guilty of 1st degree murder". The distinction is even more meaningful if the person was actually charged with murder but the jury explicitly found the person not guilty on that but guilty of manslaughter, which is essentially what happened with Trump in the abuse/rape distinction.
Ken made clear the decision could have gone the other way on the basis that the allegation is substantially true, but his main point was that the more you are describing the legal process, and the less you are describing the actual crime, you are moving away from opinion about the crime and moving into a false description of events.
> you can call digital penetration rape in either state but you can't say "you were found liable for rape"
The difference was abundantly clear. What I was getting at is that he was found liable for sexual abuse but not liable for rape. And so it is easy to see where it would be irresponsible to say he was found liable for rape because the evidence to the contrary is in plain sight. But supposing he was only charged and found liable for the nonconsensual digital penetration. One might, without being aware that there is a separate rape statute, inaccurately say that the jury found he committed rape because the other charge wasn't part of the conversation. Does that make sense?
I couldn't say "The jury found him guilty of 1st degree murder" because "1st degree murder" is a legal term, not a term used in ordinary conversation. The issue is whether I could say the jury found him guilty of murder.
Fair - I wasn't trying to make a perfect analogy to the situation, just highlighting the distinction between describing the criminal conduct and describing the legal proceedings that was the thrust of Ken's point, with "1st degree murder" being more obviously a false statement of fact rather than an opinion for demonstration purposes.
I presume the analysis would be the same if the comment was just "the jury found him guilty of murder", again especially if the person was charged but not convicted on an actual murder charge.
Either way, there's no debate about whether you can call a person a rapist or call certain acts rape in NY, Florida, or elsewhere. It's just about how you can describe the legal proceeding.
I am confused. I'm only sourcing wikipedia on the E Jean Carrol case, but it says,
In July, Judge Kaplan clarified that the jury had found that Trump had raped Carroll according to the common definition of the word. In August 2023, Kaplan dismissed a countersuit and wrote that Carroll's accusation of "rape" is "substantially true".
So, is it safe to call Trump a "rapist", citing the defamation case?
Likely yes. Because that’s colloquial use. But this case shows it’s dangerous to say factually that the jury found he committed rape. Because that’s a different more specific context in which one would expect more accuracy.
The coolest thing about the Fox News lawsuit was that discovery happened and we got horse's mouth evidence of all the stuff we knew about them. If the pulitzer litigation proceeds, would that mean we'd get to hear about stuff like the Trump tower "adoption" meeting between Jr, Jared, Manafort, and the Putin surrogate?
I once had the displeasure of having to sit through a sales pitch by Bailey when I worked at a major title insurance company and their claims department several years ago. I absolutely 100% believe that he accosted the judge the way he did. He comes off as very pompous, and a know it all. He was once a decent real estate litigator, but if you Google him, you will see that his reputation currently is not what it once was.
If I heard correctly, I think Ken said that he expected that the Supreme Court would go with Judge Cannon's opinion that the special council was unconstitutional. That surprised me a little. My impress was that Justice Thomas was certainly on board, but that most opinion was that it was constitutional. I know that the immunity decisions has changed what many people think that the court is willing to do, but do we really think that it is likely that they would agree with Cannon? Just from a purely legal perspective what is the better argument?
Random question- when we do prisoner swaps with Russia, do the people serving time in our prisons get their sentences suspended somehow? Or is there some pretense that they are going to serve the remainder of their time in a Russian prison?
Ken, not trolling for once and it’s a follow up on the federal government payouts on claims that I don’t understand how they could win on the merits. The one that sticks in my mind is the payout to the victims of Lawrence Nassar who molested the gymnasts. I can’t for the life of me figure out the plausible cause of action there on top of FTCA restrictions. But they got a ton of money. I see it sometimes on awful police shootings where Bivens shrinkage would kill the case but the victims get money. Am I missing something or is your statement on settlement optics/giving money to your sympathetic allies only being a marginal consideration have other qualifications?
I sense that the ABC apologetic press release would not be the end goal of the legal strategy...
Oct 25 2024
For immediate release:
ABC News apologizes for the claim that Donald Trump raped E Jean Carroll. On January 26, 2024 a jury of Donald Trump's peers listened to the evidence presented and judged that Donald Trump committed Sexual Assault on E Jean Carroll, not rape. To reiterate, Donald Trump did not rape E Jean Carroll when pinning her against a wall against her will, it was determined in a court of law to be a Sexual Assault.
When George Stephanopoulos, mentioned 10 times that Donald Trump raped E Jean Carroll he should have instead stated 10 times that a jury of his peers concluded Donald Trump Sexually Assaulted E Jean Carroll.
ABC News regrets the error in not correctly identifying that Donald Trump was convicted by a jury of his peers to have committed Sexual Assault.
This case seems strange to me because it seems odd that if I describe a crime as "rape," and that particular behavior is a crime in all 50 states and is named "rape" in some of those states, that I would be guilty of defamation.
Suppose a very bad man in Florida grabs a woman, and non-consensually sticks his penis in her. He is arrested and convicted for this act. The victim says, "I'm glad my rapist was convicted of rape by a jury."
Does the rapist get to sue her for defamation because Florida, like many other states, does not have a crime named "rape," even though most people would call that crime "rape"? Are there no rapists in Florida because Florida doesn't have a crime named "rape"?
I certainly have no idea, but one difference (if I understand what J&K said) is that since NY does have a rape statute that Trump was specifically found not liable for, it could be different from describing an actual conviction using a colloquial term as shorthand.
Under that theory you either have to say
1) I can't call anyone a rapist in Florida because there is no crime named rape in Florida, or
2) I can call involuntary penis penetration a rape in Florida and I can also call an involuntary digital penetration in Florida a rape, because there is no crime named rape in Florida but involuntary penetration by finger or penis is called rape in some other states and in colloquial use, but I can't call involuntary digital penetration a rape in New York.
Both of these seem wrong to me. They seem to assume an intimate familiarity with state laws that basically nobody has.
#2 seems reasonable to me with the huge caveat that you can call digital penetration rape in either state but you can't say "you were found liable for rape" in the one place where a rape conviction (using those terms) is a thing.
But yes, this maybe doesn't make sense if, in NY, a rape claim isn't part of the litigation and so the person describing it could be unaware that there is a separate rape statute.
I think you're both missing the point that Ken was making.
The issue is not whether you can call what Trump did "rape". You can. What you can't do is say (or at least it is a triable issue on whether you can say) "the jury in NY found him liable for rape". The first is describing Trump's conduct. The second is describing the jury's conduct.
It's not that you need to know the particulars of a state law in order to describe its conduct. It's that you need to know the particulars of a legal proceeding if you're describing what happened in that legal proceeding.
By comparison, if someone was convicted of manslaughter, I could say "He murdered that person". What I couldn't say is "the jury found him guilty of 1st degree murder". The distinction is even more meaningful if the person was actually charged with murder but the jury explicitly found the person not guilty on that but guilty of manslaughter, which is essentially what happened with Trump in the abuse/rape distinction.
Ken made clear the decision could have gone the other way on the basis that the allegation is substantially true, but his main point was that the more you are describing the legal process, and the less you are describing the actual crime, you are moving away from opinion about the crime and moving into a false description of events.
> you can call digital penetration rape in either state but you can't say "you were found liable for rape"
The difference was abundantly clear. What I was getting at is that he was found liable for sexual abuse but not liable for rape. And so it is easy to see where it would be irresponsible to say he was found liable for rape because the evidence to the contrary is in plain sight. But supposing he was only charged and found liable for the nonconsensual digital penetration. One might, without being aware that there is a separate rape statute, inaccurately say that the jury found he committed rape because the other charge wasn't part of the conversation. Does that make sense?
Yeah, I agree if there was no specific not-liable finding re rape, it probably would have gone the other way, and maybe still should have.
I was mostly responding to your and Anne's debate about whether you can "call someone a rapist in Florida" or "call digital penetration rape in NY".
I couldn't say "The jury found him guilty of 1st degree murder" because "1st degree murder" is a legal term, not a term used in ordinary conversation. The issue is whether I could say the jury found him guilty of murder.
Fair - I wasn't trying to make a perfect analogy to the situation, just highlighting the distinction between describing the criminal conduct and describing the legal proceedings that was the thrust of Ken's point, with "1st degree murder" being more obviously a false statement of fact rather than an opinion for demonstration purposes.
I presume the analysis would be the same if the comment was just "the jury found him guilty of murder", again especially if the person was charged but not convicted on an actual murder charge.
Either way, there's no debate about whether you can call a person a rapist or call certain acts rape in NY, Florida, or elsewhere. It's just about how you can describe the legal proceeding.
I can’t imagine that it is physically possible to defame Trump.
I am confused. I'm only sourcing wikipedia on the E Jean Carrol case, but it says,
In July, Judge Kaplan clarified that the jury had found that Trump had raped Carroll according to the common definition of the word. In August 2023, Kaplan dismissed a countersuit and wrote that Carroll's accusation of "rape" is "substantially true".
So, is it safe to call Trump a "rapist", citing the defamation case?
Likely yes. Because that’s colloquial use. But this case shows it’s dangerous to say factually that the jury found he committed rape. Because that’s a different more specific context in which one would expect more accuracy.
Why no transcript? It can't be that hard to make the usual crappy AI transcript, can it?
The coolest thing about the Fox News lawsuit was that discovery happened and we got horse's mouth evidence of all the stuff we knew about them. If the pulitzer litigation proceeds, would that mean we'd get to hear about stuff like the Trump tower "adoption" meeting between Jr, Jared, Manafort, and the Putin surrogate?
I once had the displeasure of having to sit through a sales pitch by Bailey when I worked at a major title insurance company and their claims department several years ago. I absolutely 100% believe that he accosted the judge the way he did. He comes off as very pompous, and a know it all. He was once a decent real estate litigator, but if you Google him, you will see that his reputation currently is not what it once was.
If I heard correctly, I think Ken said that he expected that the Supreme Court would go with Judge Cannon's opinion that the special council was unconstitutional. That surprised me a little. My impress was that Justice Thomas was certainly on board, but that most opinion was that it was constitutional. I know that the immunity decisions has changed what many people think that the court is willing to do, but do we really think that it is likely that they would agree with Cannon? Just from a purely legal perspective what is the better argument?
Random question- when we do prisoner swaps with Russia, do the people serving time in our prisons get their sentences suspended somehow? Or is there some pretense that they are going to serve the remainder of their time in a Russian prison?
Aw, no Bob Menendez?
Ken, not trolling for once and it’s a follow up on the federal government payouts on claims that I don’t understand how they could win on the merits. The one that sticks in my mind is the payout to the victims of Lawrence Nassar who molested the gymnasts. I can’t for the life of me figure out the plausible cause of action there on top of FTCA restrictions. But they got a ton of money. I see it sometimes on awful police shootings where Bivens shrinkage would kill the case but the victims get money. Am I missing something or is your statement on settlement optics/giving money to your sympathetic allies only being a marginal consideration have other qualifications?