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Left inset: Journalist E. Jean Carroll departs from the courthouse after the conclusion of the damages trial against Donald Trump at Manhattan Federal Court on January 26, 2024 in New York City (John Angelillo, Alamy Live News via AP). Main: Trump leaves his apartment building on Jan 26, 2024, a day after he left a New York courtroom fuming that he hadn”t been given an opportunity to refute E. Jean Carroll’s sexual abuse accusations. (AP Photo/Yuki Iwamura).
After failed attempts on at least two fronts to complicate or delay oral arguments, President Donald Trump’s lawyers returned to federal court on Tuesday to once again appeal the $83 million defamation judgment that longtime advice columnist E. Jean Carroll won at the start of 2024.
Presiding for the 2nd U.S. Circuit Court of Appeals were Senior U.S. Circuit Judge Denny Chin, a Barack Obama appointee, and U.S. Circuit Judges Sarah Merriam and Maria Araújo Kahn, both Joe Biden appointees.
Following an en banc rehearing denial in Trump’s appeal of a $5 million civil jury verdict that found him liable for sexually abusing and defaming Carroll, and following the 2nd Circuit panel’s refusal to substitute the DOJ for Trump as defendant-appellant in the defamation case we now discuss, the panel also declined the president’s request to push back scheduled oral arguments.
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That denial swiftly brought forth the Tuesday morning proceedings, during which Trump attorney Justin Smith began by calling the Carroll verdict a “miscarriage of justice” and one that “severely damages the presidency.”
After repeating the claim that Trump never met Carroll, even though there is a photo of them meeting in the late 1980s, Smith slammed the trial judge, Senior U.S. District Judge Lewis Kaplan, for rulings that “prevented” Trump from “putting on critical evidence,” and asserted that Trump never actually waived his immunity defense.
Donald Trump, E. Jean Carroll, Carroll’s then-husband John Johnson, and Trump’s then-wife Ivana Trump meeting at a party in 1987 (Carroll complaint).
Chin jumped in to ask Smith “didn’t we already so hold” years ago that Trump’s immunity defense was waived?
Smith argued that this immunity is “not waivable,” but regardless, the intervening 2024 U.S. Supreme Court decision in Trump v. United States — which granted wide immunity to presidents — made clear that presidential immunity is “on the same footing as Speech or Debate immunity” for lawmakers, as seen in the 1979 case U.S. v. Helstoski.
When the circuit judges noted that the issue of waiver wasn’t addressed by SCOTUS, Smith replied that “it didn’t need to be.”
Kahn, for her part, asked why now was the appropriate time to appeal and why the defense didn’t raise the issue two years ago and not until after trial.
Disputing that “factual record,” Smith stated “there has been a consistent assertion of presidential immunity.”
Not so fast, said Kahn, noting that Trump’s prior private counsel Alina Habba, currently the acting U.S. attorney for the District of New Jersey, conceded two years ago that if presidential immunity was waivable then it was waived.
Alina Habba pictured during an appearance on Fox News, May, 9, 2024 (Fox News).
Smith responded that the “ordinary rules for waiver no longer apply,” again citing Trump v. United States and Helstoski. The latter case dealt with a New Jersey congressman who was indicted for corruption, who was repeatedly called before a grand jury, and who eventually asserted immunity based on the Speech or Debate Clause.
Arguing that there’s been “no finding” that Trump “unequivocally” waived immunity, Smith again asserted that Trump v. United States “casts doubt” on the 2nd Circuit panel’s opinion from last time and necessitates a new ruling.
Carroll attorney Roberta Kaplan spoke next, noting her client was seated behind her in court.
“The president is not above the law,” Kaplan began, saying that Trump himself acknowledged that “very principle” at the start of the case, when he said in state court that Carroll could pursue her lawsuit when he was no longer president.
“We submit this is actual a very straightforward appeal,” Kaplan said, noting that the 2nd Circuit already ruled that presidential immunity can be waived and that it was waived here.
The SCOTUS decision in Trump v. United States would matter “only if it spoke to the question of waiver,” which it didn’t, Kaplan added, again pointing to Habba’s past concession that if presidential immunity is waivable then it was waived.
Kaplan pushed back on the Trump team’s citation of Helstoski by saying the case was quite different from the one at hand and that, again, presidential immunity as an affirmative defense was waived at the “very beginning of this case.”
Trump never raised presidential immunity in his answer to the complaint, and he didn’t raise it until summary judgment, Kaplan said. In civil litigation, that’s how parties waive affirmative defenses, she added.
When asked by the panel how they should view the “high” punitive damages award in this case, Kaplan said that Carroll receives rape and death threats on just about a daily basis — threats traceable to Trump’s defamatory statements that her allegations were a “hoax.”
Trump showed up at trial and repeatedly showed his “hatred and disdain” for both Carroll and the judicial process, Kaplan said.
“He continued to defame Ms. Carroll throughout the trial” and at a presser conference held outside the courthouse after the trial was over,” she said.
That record certainly justified the punitive damages award as a matter of deterrence, Kaplan continued.
“I don’t think there can be any question about punitive damages,” she said.
On rebuttal, Smith asked the 2nd Circuit to reverse the proceedings below and again stated that there was no “unequivocal renunciation of the waiver.”
Asked by Chin about “exceptional” circumstances surrounding the punitive damages award, Smith pointed to a recent dissent by Trump-appointed circuit judges slamming the district judge’s evidentiary rulings as “indefensible.”
In that dissent, the judges state that “[n]o one can have any confidence that the jury would have returned the same verdict if the normal rules of evidence had been applied.”
Near the very end of oral arguments, Merriam stated that Trump’s memorable deposition and denials in the Carroll case were admitted into evidence, however.
Just days before oral arguments, the 2nd Circuit panel rejected Trump’s latest attempt to invoke the Westfall Act, which extends protection against tort claims, such as defamation, to federal employees by substituting the government as the defendant. Trump argued, as he did years ago, that the Westfall Act applies to him because he was “acting within the scope of his office as President of the United States” when he called Carroll’s rape accusation a politically and financially motivated lie or “hoax.”
The 2nd Circuit also recently denied Trump an en banc rehearing of his appeal of a separate $5 million judgment, to the dismay of the dissenting Trump-appointed judges who said the trial outcome may very well have been different had Trump been allowed to explore whether Carroll’s allegations and lawsuits were politically motivated and financially backed by Democrats.
