Former Elle magazine advice columnist E. Jean Carroll watches as Joe Tacopina, lawyer of former U.S. President Donald Trump, makes closing arguments during a civil trial where Carroll accuses Trump of raping her in a department store dressing room in the mid-1990s, and of defamation, New York, May 8, 2023.
Jane Rosenberg | Reuters
A federal appeals court on Wednesday rejected arguments by Donald Trump that presidential immunity protected him from being sued for defamation by the writer E. Jean Carroll.
The ruling is the latest judicial rejection of claims by Trump that he is protected from either civil or criminal liability because he was president.
It comes days after Department of Justice special counsel Jack Smith asked the Supreme Court to fast-track Trump’s appeal of a Washington, D.C., federal judge’s recent ruling that he does not have presidential immunity from criminal charges related to his attempt to reverse his loss in the 2020 presidential election.
The question of presidential immunity also is being raised in the Georgia state criminal case where Trump and other defendants are charged with crimes related to their attempt to undo his loss to President Joe Biden in that state in the 2020 election.
In the Carroll case, a 2nd Circuit Court of Appeals panel said Trump had waived a potential presidential immunity defense by “failing to raise it” for several years in the case in Manhattan federal court, where Carroll alleges he defamed her in 2019 by claiming she had made up a claim of him raping her in the mid-1990s.
Trump was president at the time he made those statements.
“We hold that presidential immunity is waiveable and that Defendant waived this defense,” the three-judge appeals panel ruled in a unanimous opinion written by Judge Jose Cabranes.
The ruling clears the way for Trump to stand trial in the civil case in January. The trial will solely deal with the question of how much Trump should pay Carroll in monetary damages, as District Court Judge Lewis Kaplan previously ruled that Trump’s statements were defamatory.
Trump’s lawyer Alina Habba, in a statement, said, “The Second Circuit’s ruling is fundamentally flawed and we will seek immediate review from the Supreme Court.” There is no automatic right to appeal to the Supreme Court, which rarely grants requests for appeals.
Carroll’s lawyer Robbie Kaplan, in her own statement, said, “We are pleased that the Second Circuit affirmed Judge Kaplan’s rulings and that we can now move forward with trial next month on January 16.”
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The 2nd Circuit Court of Appeals panel said that Trump presented “a vexing question of first impression: whether presidential immunity is waiveable.”
“We answer in the affirmative and further hold that Donald J. Trump (‘Defendant’) waived the defense of presidential immunity by failing to raise it as an affirmative defense” when he first responded to Carroll’s suit when it was first filed in late 2019, the ruling said.
Trump had raised the argument that Carroll’s lawsuit was barred by presidential immunity for the first time in January 2023.
In a related civil lawsuit case tried in Manhattan federal court earlier this year, Trump was found liable for sexually abusing Carroll in a New York department store in the mid-1990s after a chance encounter there, and defaming her in late 2022 when he again denied her allegation.
Trump was ordered to pay Carroll $5 million in damages in that case. He is appealing the verdict and the damage award.
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