MANHATTAN (CN) — Hoping to keep writer E. Jean Carroll’s second defamation trial in New York federal court at bay while presidential primary season is underway, attorneys for former President Donald Trump on Monday urged a Second Circuit panel to affirm his claims of absolute presidential immunity as a defense against the columnist's suit.
Carroll seeks $10 million in damages over Trump’s denials that he raped her in early 1996 in a fitting room at New York City’s famed Bergdorf Goodman department store, after the two recognized each other and Trump asked her to help him pick out a gift for a woman.
Citing precedent set in Nixon v. Fitzgerald — which established immunity from civil liability for official conduct as president — Trump’s attorneys argued on appeal that a president is absolutely immune in actions for civil damages for all acts within the “outer perimeter” of his official duties.
“Undoubtedly, one of the president’s most vital functions is his ability to address the public on matters of national concern," Trump's defense lawyers argued in an appeals brief. "Accordingly, a president’s actions are highly protected when he acts in this capacity."
During oral arguments on Monday afternoon, Madaio argued the lower court’s denials of Trump’s immunity defense threaten to disrupt the separation of powers between the Judicial Branch and the Executive Branch, and “significantly diminish the latitude of protection afforded to all presidents under the presidential immunity doctrine.”
Trump has mounted similar claims of absolute immunity in pending motions to throw out special counsel Jack Smith’s criminal case related to Trump’s efforts to subvert the outcome of the 2020 presidential election.
Joshua Matz, an attorney with Kaplan Hecker representing Carroll, told the appellate panel on Monday that every single argument from Trump’s defense is “mistaken,” and called their belief that such a presidential immunity is unwaivable “hokum."
Matz noted to the panel that Trump’s defense had held off mounting the presidential immunity defense for three years. “A party that believes that they are holding on to absolute immunity from a case does not behave the way Mr. Trump has behaved,” he said.
Carroll’s lawyers argue they’ve been unfairly prejudiced by Trump’s “procedural chicanery,” “gamesmanship,” and inexplicable delay tactics in the case.
“Here, Trump did not merely ‘delay’ in raising his absolute immunity defense,” their appellate brief states. “He failed to raise it at the outset of the case in November 2019; he waived it in his answer in February 2020; and he disavowed it by letter in July 2020. He then waited until December 2022 to file his motion. This delay was obviously ‘inordinate.’ And he has never even attempted to explain it.”
Trump’s application of the purported presidential immunity “takes what is meant to be an immunity for certain official functions” and turns into a broad immunity for the individual holding the seat of the president, Matz argued.
Carroll’s attorney also urged the judges to look at the violent attack on the U.S. Capitol on January 6th, 2021, as an example of public speech that can cause significant harm to private citizens and blurred the lines between presidential and monarchical.
The three-judge panel — comprised of Senior U.S. Circuit Judge Jose Cabranes, U.S. Circuit Judge Denny Chin, and U.S. Circuit Judge Maria Araújo Kahn — did not immediately rule on Trump’s appeal, but will issue a written decision before the trial is due to start.
This year, the judge presiding over Carroll’s trial in Manhattan federal court, U.S. District Judge Lewis Kaplan, rejected Trump’s presidential immunity claims as “frivolous” and anticipated that the former reality star would not prevail on appeal either.
Her civil defamation suit arises from then-president Trump’s 2019 denial of her account when she first publicly came forward, detailing the account in her book “What Do We Need Men For? A Modest Proposal” and an excerpt published in New York Magazine. “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened,” Trump said in June 2019, among other repeated denials insisting Carroll was making up the story.
A New York jury already found Trump liable this past May on counts of sexual battery and defamation in the first of Carroll’s two civil cases that went to trial, and ordered Trump to pay $5 million in damages.
The jury ultimately found that Carroll did not prove Trump raped Carroll, the most severe possible element, but found that he sexually abused her and awarded Carroll $2 million in compensatory damages plus $20,000 in punitive damages. On the defamation count, Trump will have to pay $1.7 million in damages for a reputation repair program plus $1 million in other damages. Carroll's expert testified that repairing damage to her name could cost up to $2.7 million.
Five months after the verdict came down in the first trial, U.S. District Judge Kaplan found Trump liable on summary judgment for the defamation claims of Carroll’s other suit, ruling he acted with actual malice in making a series of false statements about Carroll in June 2019 when she came forward with accusations that Trump raped her decades earlier in the dressing room of a Manhattan department store.
U.S. District Judge Kaplan has scheduled the trial solely to determine damages to begin on January 15, 2024, the same day as the Iowa Republican presidential caucuses kick off primary elections in the 2024 presidential race.
Trump was not required to, and did not, attend in-person oral arguments before the appeals panel in Lower Manhattan on Monday. He is set to speak at a campaign rally in Derry, New Hampshire, on Monday night, and will reportedly return to New York on Tuesday to attend his civil fraud trial in state supreme court.
Prosecutors in that case are expected to call Trump’s former personal attorney and longtime personal fixer Michael Cohen to testify on Tuesday morning.
On Friday, the judge in the Manhattan Supreme case fined Trump $5,000 after his disparaging social media post about the principal court clerk in his New York civil fraud trial remained posted to his campaign website for weeks after the judge had ordered it deleted.
Despite a limited gag order in the case, Trump has continued to malign the judge as a “highly partisan” fraud on his TruthSocial platform.
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