By Jonathan Stempel
NEW YORK (Reuters) – In a significant twist, a federal appeals court on Monday raised questions about former U.S. president Donald Trump’s delayed claim for absolute immunity against a defamation lawsuit filed by writer E. Jean Carroll, who accused him of rape.
The 2nd U.S. Circuit Court of Appeals in Manhattan, comprising a three-judge panel, challenged Trump’s lawyer Michael Madaio during oral arguments concerning Trump’s appeals against pivotal rulings made by U.S. District Judge Lewis Kaplan.
Madaio insisted that presidential immunity is an “absolute and nonwaivable protection” that cannot be overridden by judges.
In November 2019, Carroll, a former Elle magazine columnist, sued Trump over his denial of her rape allegations, which she claimed happened in a midtown Manhattan department store dressing room in the mid-1990s. Trump, who was president at the time, responded by saying Carroll was “not my type” and suggested that she fabricated the claims to boost sales of her upcoming memoir.
Trump is currently appealing Kaplan’s rulings: the June 29 refusal to dismiss Carroll’s lawsuit, and the Aug. 7 dismissal of his defenses and defamation counterclaim against her.
In a Sept. 6 ruling, Kaplan deemed Trump’s denial defamatory, leaving the issue of damages for the trial scheduled for Jan. 16, 2024. Carroll is seeking a minimum of $10 million.
Furthermore, on May 9, a jury awarded Carroll $5 million for sexual assault and defamation, although not for rape, after Trump once again denied the rape allegation in October. Trump is appealing this verdict as well.
During the arguments on Monday, Madaio argued that Trump was within the “outer perimeter” of his presidential duties when he responded to Carroll’s accusations. Madaio also contended that denying immunity would interfere with the separation of powers outlined in the U.S. Constitution between the executive and judicial branches.
Circuit Judge Denny Chin questioned why Trump waited until December 2022 to assert his claim of immunity, especially after raising other defenses over the course of three years and once evidence had been collected by both sides.
“This defense was not asserted throughout the three years of litigation. Why was it an abuse of discretion for Judge Kaplan to say it is too late?” Chin asked.
‘HOKUM’
Carroll, 79, has accused the 77-year-old Trump of using delaying tactics to prevent her case from going to trial. After the previous verdict, in which Trump called her a “whack job” during a CNN town hall-style event, Carroll proposed a $10 million damages amount.
However, Carroll’s lawyer Joshua Matz rejected the notion that Trump could not waive absolute immunity due to “broader structural considerations.”
“That argument is hokum,” Matz argued before the appeals court. “A party who believes they are immune from a lawsuit does not behave the way Mr. Trump did in this case.”
The court did not indicate when a ruling would be issued.
Trump’s defamation counterclaim arose from his assertion that Carroll damaged his reputation by continuing to assert, including on CNN, that he had raped her.
Kaplan certified on Aug. 18 that Trump’s appeal of his refusal to dismiss the case was “frivolous.”
If the appeals court agrees with the judge, Trump may be required to pay damages and costs.
Despite facing four federal and state criminal indictments, Trump is currently the frontrunner for the Republican nomination to challenge Democratic President Joe Biden in the 2024 U.S. election. Trump has pleaded not guilty to these charges.
Additionally, Trump is a defendant in a civil fraud trial in which New York Attorney General Letitia James alleges that he fraudulently inflated his assets and net worth to deceive lenders and insurers.
The case is Carroll v. Trump, 2nd U.S. Circuit Court of Appeals, Nos. 23-1045 and 23-1146.
(Reporting by Jonathan Stempel in New York; Editing by Will Dunham)
