Trials & Litigation

Trump raised immunity defense too late in defamation case over sexual assault denial, 2nd Circuit says

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E. Jean Carroll May 2023

Writer E. Jean Carroll walks out of Manhattan federal court in New York City on May 9. A jury has found former President Donald Trump liable for sexually abusing the advice columnist in the 1990s, awarding her $5 million. Photo by Seth Wenig/The Associated Press.

Former President Donald Trump waived a presidential immunity defense when he failed to raise the issue in an answer to a lawsuit filed by a woman alleging that his sexual assault denials defamed her, a federal appeals court ruled Wednesday.

The 2nd U.S. Circuit Court of Appeals at New York ruled against Trump in a suit filed by writer E. Jean Carroll, who alleged that Trump sexually assaulted her in a Bergdorf Goodman dressing room in New York City in the mid-1990s.

Law360, Reuters and Courthouse News Service have coverage.

Carroll has two separate suits against Trump. The case known as Carroll II was filed under a New York law that gave adults alleging sexual assault a one-year window to sue over time-barred claims. That suit also included a defamation claim for a denial that Trump made in October 2022. Jurors awarded Carroll $5 million in that suit in May, finding that Trump sexually assaulted Carroll but did not rape her.

The 2nd Circuit ruled in Carroll I, a pending suit alleging that Trump defamed Carroll by his sexual assault denials while he was president. The suit, amended in May to add later denials, is pending before U.S. District Judge Lewis Kaplan of the Southern District of New York, who also presided in the other Carroll trial.

“We hold that presidential immunity is waivable, and that defendant waived this defense,” the 2nd Circuit said in an opinion by Judge José A. Cabranes, an appointee of former President Bill Clinton.

Trump did not invoke the immunity defense when he filed his answer to the complaint in January 2020, and he did not try to invoke it until three years later, the appeals court said.

A lawyer for Trump, Alina Habba, said the 2nd Circuit decision was “fundamentally flawed,” and Trump would seek U.S. Supreme Court review, according to Law360 and Reuters.

Carroll’s lawyer Roberta Kaplan sent a statement to the ABA Journal.

“We are pleased that the 2nd Circuit affirmed Judge Kaplan’s rulings and that we can now move forward with trial next month on Jan. 16,” Kaplan said.

See also:

“Lawyers for Trump and rape accuser square off over DNA offer”

“Collateral estoppel allows jurors to skip liability issue in second Trump defamation trial”

“Is Trump immune in defamation suit over rape denial? It’s too soon to decide, top DC court says”

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