Attorneys for former President Donald Trump made yet another attempt at arguing that the former president has a “presidential immunity,” or “absolute immunity” as a U.S. Supreme Court decision came to describe it, in the defamation case against him brought by writer E. Jean Carroll.
Michael Madaio said they had “tried to raise presidential immunity three times and ... been rejected by the courts three times” already as judges heard arguments about whether presidential immunity was a defense that could be waived.
Defamation Case
Last month, U.S. District Judge Lewis Kaplan ruled that President Trump was liable for defamation for his 2019 remarks and that an upcoming trial in January will deal with how much he should pay the writer in damages.Ms. Carroll sued President Trump in 2019, accusing him of defaming her when he denied her allegations that he had raped her in a department store in the 1990s. The suit originally dealt with three statements: one issued by the White House and two responses he gave to reporters.
Presidential Immunity
President Trump responded with motions to dismiss the case and a countersuit, all of which have been rejected by Judge Kaplan. Now he’s appealing the judge’s rejection of his presidential immunity defense.During the hearing, judges questioned attorneys for both sides about whether presidential immunity is a defense that can be waived, before only hypothetically addressing the issue of whether it applies to President Trump in this case.
The judges and Ms. Carroll’s attorney noted that President Trump didn’t invoke presidential immunity right off the bat; he made other arguments and invoked an anti-SLAPP (strategic lawsuit against public participation) defense first and then argued he had presidential immunity only after Ms. Carroll amended her lawsuit.
“A party that believes they are absolutely immune does not behave the way Mr. Trump has,” attorneys for Ms. Carroll said.
Attorneys for President Trump argued that if a judge could waive presidential immunity, it would damage the separation of powers that the defense seeks to protect. His legal team’s position is that this is a jurisdictional defense, not a merit-based one. They argued that the case against President Richard Nixon that resulted in the Supreme Court’s clarifying presidential immunity as “absolute” rejected a subjective test for whether the immunity applies, which would have resulted in any president being put on trial to question whether he merited such immunity.
Judges questioned whether this immunity would prevent any president from bringing a counterclaim if he wished to. President Trump’s team argued that the immunity is to protect the president “in his ability to do his job” and wouldn’t preclude his ability to litigate if he wishes; the immunity protects the president from legal action but doesn’t prohibit him from bringing his own lawsuits.
Attorneys for Ms. Carroll argued the opposite, that if it’s a defense that can’t be waived, this could only “aggrandize” the judiciary because it would bar the president from court even if he wanted to bring counterclaims.
They argued that deeming it a defense that could be waived wouldn’t “chill” future presidents because it can still be waived only voluntarily. They also argued that this defense was prejudicial because it was being sprung on them three years into the case.
