Court Expedites Trump’s ‘Absolute Immunity’ Appeal in Defamation Case

(Left) Former President Donald Trump speaks in Montgomery, Ala., on Aug. 4, 2023 (Julie Bennett/Getty Images); (right) E. Jean Carroll leaves following her trial at Manhattan Federal Court in New York, on May 8, 2023. Stephanie Keith/Getty Images

The Second Circuit appeals court has denied former President Donald Trump’s request to pause a court decision while he appeals the defamation case writer E. Jean Carroll brought against him, but it has ordered that the appeal be expedited.

“It would be in the interest of the parties, as confirmed during oral argument, for the Court to resolve the issue of absolute presidential immunity as presented in the two appeals expeditiously,” the court clerk wrote on Wednesday.

President Trump will have to submit his brief by Sept. 28, and Ms. Carroll a response 15 days after that, after which Mr. Trump can file a response within five days if necessary. A panel will be assigned to hear the case.

“The parties’ extensive briefing thus far makes clear that they have already substantially developed their arguments on the merits of that and related issues,” the clerk wrote.

The case it set to go to trial Jan. 15, 2024, incidentally the same day New Hampshire has set its Republican primary. The former president is campaigning to run for reelection in 2024 and faces a busy court schedule as he continues to lead the GOP field by double digits.

A federal judge had denied President Trump’s request to delay the trial, and denied another motion to dismiss the suit entirely based on the “absolute immunity” a U.S. president is granted. President Trump’s countersuit alleging Ms. Carroll defamed him was also thrown out.

Judge Lewis Kaplan, presiding over the case, has previously ruled against President Trump in several motions related to the cases Ms. Carroll brought against him.

In the current case, the judge has already ruled for Ms. Carroll, writing that the trial in January will only deal with how much President Trump owes her in damages.

Two Lawsuits

Ms. Carroll had first brought the defamation case against the former president in 2022, based on remarks he made in office denying her allegations of sexual assault, later updated to include several more comments he made to the press out of office.

Ms. Carroll had alleged that President Trump raped her, in 1996, in a department store dressing room. He denied this via a statement and later in interviews and comments to the press, alleging he had never met her and that she had made the story up.

Ms. Carroll then sought damages for his comments in one lawsuit, and later brought forth a second lawsuit when New York passed the Adult Survivors Act, allowing victims to bring forth sexual offense cases outside of the statute of limitations for one year, between November 2022 and November 2023.

In May, a jury awarded Ms. Carroll $5 million in the second lawsuit, finding him liable for both defamation and “sexual battery,” which is the term the court used. Attorneys for President Trump noted that even though Ms. Carroll had brought forward a “rape” case, the jury did not rule that he had raped her, yet still ruled in her favor. President Trump appealed the ruling, but a judge denied both a new trial for the case or a reduction to the damages he was ordered to pay Ms. Carroll.

The court also allowed Ms. Carroll to amend her first lawsuit to seek more damages, which she did, asking for $10 million. A jury in the January trial will decide how much Ms. Carroll is to be awarded, if President Trump’s immunity defense does not hold up.

Absolute Immunity

The “absolute immunity” of a president arose from the section of the U.S. Constitution describing his official duties. Although it does not include “immunity,” various U.S. Supreme Court rulings that use this section as a basis have conferred immunity to U.S. presidents for actions taken while in office.

The first lawsuit against a U.S. president was brought forth in 1867, when the State of Mississippi sued President Andrew Johnson to delay Reconstruction efforts. The high court ruling effectively put the president beyond the sphere of the judiciary, writing that it had “no jurisdiction ... to enjoin the President in the performance of his official duties.”

Later cases made it clear that presidents were not immune from all proceedings, and could still be subject to subpoenas.

But in a 1981 case, when Arthur Fitzgerald brought a case against President Richard Nixon because he was fired from his contract position at the U.S. Air Force after a testimony he gave Congress, the Supreme Court made it clear the president was absolutely immune from civil damages not just for official acts but actions in the “outer perimeter” of official duties as well. The court ruled that the president held a “unique position in the constitutional scheme.” It wrote that a merely private suit for damages based on a President’s official acts do not serve this broad public interest.

Previously, the Department of Justice (DOJ) in 2019 defended President Trump in the case Ms. Carroll brought against him, citing this absolute immunity. The agency cited the Westfall Act, which protects federal employees from cases against them including those of battery, negligent injury, and defamation in their official duties, such as President Trump’s statement.

But this July, the DOJ reversed its decision. In a letter sent to attorneys of the former president, they wrote that it can no longer conclude he was acting in his official capacity, citing new guidance from a recent Washington case.

“No direct evidence of the former President’s state of mind in making these statements is available,” they wrote, arguing that for the immunity to apply, the action needs to be taken with a purpose “to serve the United States Government.”