Trump Waived Presidential Immunity Defense in Jean Carroll's Libel Case Against Him

So holds the Second Circuit today, in an opinion (Carroll v. Trump) by Judge José Cabranes, joined by Judges Denny Chin and Maria Araújo Kahn. The defense, the court held, isn't one of the rare subject-matter-jurisdiction-based defenses that can be raised at any stage of the case, and thus aren't waivable. And, the court continued, Trump's failure to raise the defense early in the litigation (as an affirmative defense in his Answer to Carroll's Complaint) did indeed waive the defense.

None of this resolves whether the defense, if raised promptly, would have indeed precluded the civil lawsuit against Trump, nor does it speak to the merits of the lawsuit.

Comments

[shg]

2d Cir., not DC.

[Eugene Volokh]

Whoops, sorry -- fixed!

[Mr. Bumble]

Glad that at least you have an edit function.

[Bob from Ohio]

Clinton, Obama, Biden judges.

[Nige]

Strawberry, coffee, vanilla fudges
Gentle pushes are called nudges
Parrots famously hold long grudges

[shawn_dude]

Partisan hacks are fond of kludges
twisting facts when they misjudge
targeting people to besmudge

[NvEric]

Twisted logic on the docket
Many seek to win
Better to finger a socket
Than fall in the dustbin
( degenerates fall on your sword )

[Krychek_2]

So what?

[ObviouslyNotSpam]

You know what: judges are as biased as Bob is; therefore, Clinton, Obama and Biden judges are all biased against Trump, whereas Trump judges are very perfectly fair and impartial. Simples!

[Bored Lawyer]

The amount of bad lawyering that goes on around Trump is astounding.

And in (somewhat) related news:

Michael Cohen’s lawyer cited three fake cases in possible AI-fueled screwup
A lawyer representing Donald Trump's former attorney Michael Cohen filed a court brief that cited three cases that do not exist, according to a federal judge. The incident is similar to a recent one in which lawyers submitted fake citations originally provided by ChatGPT, but it hasn't yet been confirmed whether Cohen's lawyer also used an AI tool.
https://arstechnica.com/tech-policy/2023/12/michael-cohens-lawyer-cited-three-fake-cases-in-possible-ai-fueled-screwup/

I think I will give a CLE: How to use Artificial Intelligence To Annoy The Judge And Screw Your Client (And Maybe Get Sanctioned).

[David Nieporent]

Correction: Michael Cohen's now former lawyer cited three fake cases.

[rloquitur]

This E. Jean Carroll case is thinly disguised tyranny. They reopened the statute of limitations. Then it was a "hey, he did this to me." How is he supposed to defend himself?

[Sarcastr0]

Paranoid melodrama does not suit you.

The reopened the statute of limitations was done via statute, and not with this lawsuit on anyone's radar.
https://www.jurist.org/news/2022/11/trump-sued-under-new-york-law-extending-statute-of-limitations-in-sexual-assault-civil-cases/

As to Trump's defense, he managed to be like the worst witness ever.
How to defend yourself? Don't lie you never knew the plaintiff when you demonstrably did.
And don't mix up the plaintiff with your ex-wife even as you call her too ugly for you.

[Nige]

As a master media manipulator and charsmatic personality with a reputation for truth, honesty and boasting about sexual assault, how could he have failed?

[Moderation4ever]

If I am not mistaken the case for Trump's sexual abuse of Ms. Carroll has been decided and Trump lost. This case is for defamation of character and results mostly because Trump cannot keep his mouth shut. How was he to defend himself? You go to your lawyer and they tell you how to talk without getting yourself in more trouble. Better yet you are President, and you have an entire department under the press secretary to tell you how to answer a question without getting in more trouble.

[ObviouslyNotSpam]

That's like asking Elon Musk to have his Xitter tweets reviewed by a lawyer before posting.

[not guilty]

The reopening of the period of limitations had nothing to do with animus toward Donald Trump. I surmise that the motivator was the Roman Catholic Man-Boy Lust Association's Church's inability (or unwillingness) to keep its priests out of its parishioners' children.

[Bored Lawyer]

The SOL was reopened by the NY Legislature, on the theory that sexual abuse victims were so traumatized they were unable to bring suit. The prior law was, the SOL was three years, and did not start running while one was a minor. In effect, that meant that victims of child abuse had until 21 to bring suit. The reopening allowed victims to go back decades to allege child abuse. IMO, that was not a good idea. But so be it.

But the rationale of that law had no application to E. Jean Carroll. She claimed to have been raped by Trump as an adult. Allowing her to go back 20 years and make allegations of rape was a perversion of the law, even if within the strict terms.

The other trick she pulled is what might be called the defamation circumvention of the SOL. Just repeat the allegation -- Trump raped me 20 years ago. When Trump defends himself and said, It never happened, sue him for defamation. Since the statment is new, there is a new SOL. IMO, that too is an abuse of the SOL, since the focus of the trial is on the truth of her statement, which occurred decades before.

Trump was, of course, a horrifically bad witness/defendant. And a horrifically bad human being. But the law should not be bent just because Trump is a baddie.

[Nige]

There seems to be an assumption that because Trump is awful, when he does awful things, like defaming someone, or raping them, consequences are unfair. Still not sure of the logic.

[Sarcastr0]

The law wasn’t bent. The text is what it is. There is no ambiguity in the SoL.

Which means your appeal to legislative intent is not material.

[Darth Buckeye]

There is no ambiguity in the law, it is just unjust. The law can be used against unpopular people. Yes! Get Trump! Problem is, now that the precedent is set, they can go after any unpopular person.

When the law becomes increasingly unjust, then the law will lose its legitimacy. People will no longer follow it. Thing will get very ugly then. I am glad that I am old and don't have children. I think things are going to become French Revolution bad in the next 50 years...maybe sooner.

[Sarcastr0]

...The law is targeting rapists?

It says a lot about the lens through which you see the world that this law is all about Trump to you.

[myself]

Whether or not Carroll should have been able to sue for the original rape doesn't have bearing on the defamation case.

If Trump raped Carroll then Carroll is allowed to state that fact whether or not the crime was within the statute of limitations.

And if Trump responds by calling Carroll a liar and a hoaxer ("no comment" was also a possible response), well that's pretty clearly a defamation of Carroll's character. And establishing the rape happened, whether or not the rape itself can still be prosecuted, proves that Trump defamed her.

In other words, the statute of limitations erases the punishment, not the act itself.

[David Nieporent]

.

When Trump defends himself and said, It never happened, sue him for defamation.

Of course, Trump was not sued merely for saying that he didn't do it. Trump has the impulse control of a rabid squirrel on meth, so rather than limiting himself to saying that, he said, inter alia, that she was lying to sell books, that she had made other false accusations, and that she's too ugly for him to assault her.

[Rev. Arthur L. Kirkland]

Disaffected, desperate, delusional clingers are among my favorite culture war casualties . . . and the core target audience of a white, male, right-wing blog with a vanishingly slight academic veneer.

[Mr. Bumble]

Has there been a commercial yet saying if you imagined you've been raped by Donald Trump you may be entitled to compensation?

[Moderation4ever]

Better yet tell them they are entitled to justice and that their rapist will be punished.

[CJColucci]

Fifteen comments and nobody has addressed whether the decision is right or wrong. I'm tempted to break the streak, but I'd rather wait and see if anyone decides to address it.

[Mr. Bumble]

Why sit back? Start the ball rolling.

[Moderation4ever]

I'm not sure that it was first addressed by Bored Lawyer's comment on the bad lawyering Trump is getting. The decision here was not on the question of Presidential immunity, but rather getting the paperwork done on time. A similar thing happened when the lawyers failed to request a jury trial in the NY civil fraud case. Why are these errors being made? I am assuming that these lawyers are getting very good billable rates, so why the mistakes?

[ah....Clem]

Having good billable rates is not the same thing as actually being paid for the hours you bill. Quality attorneys understand this difference and steer clear of a client with a history of non-payment.

BTW, it's not clear that the reason for a non-jury trial is due to the attorney's failure to ask for one. My understanding is that in cases like this one neither party is entitled to one, so even if they asked for one they might not have gotten it.

[David Nieporent]

You're correct that this isn't a settled question… but it's 100% guaranteed you won't get one if you don't ask for it.

[ah....Clem]

As a general rule, a party can't introduce new defenses on appeal that were not raised at the initial trial. There are exceptions, but this is not one.

Seems like a straightforward and correct application of standard procedures.

Now, one could argue that parties *should* be able to raise additional arguments on appeal, but that's not what existing precedent allows.

[Stella Link the dog]

Looked at the decision -- 35 pages (oh meu Deus) -- and read the first couple paragraphs where we find: "This case presents a vexing
question of first impression: whether presidential immunity is
waivable."

So, there was no previous "existing precedent." But, now there is -- at least in the 2d.

[ah....Clem]

There are rare exceptions for when a defense can be raised at the appeal stage, and these exceptions are well established. Does presidential immunity meet the criteria to be one of the established rare exceptions?

The short answer is no.

Granted, no attorneys have previously argued that the president is absolutely immune from being subject to the law, since that assertion is absurd on its face. Hence, no previous ruling on that specific defense. But the decision was clearly in line with precedent in that "presidential immunity" doesn't meet the criteria for non-wavier.

[Brett Bellmore]

Of course everyone Trump related gets bad lawyers; There's a major effort being made to destroy the career of any lawyer who works for them. Apparently on the theory that nobody Trump related is entitled to have legal counsel.

[Brett Bellmore]

Why Donald Trump Cannot Get a Top-Tier Lawyer

"There are disturbing suggestions that among the reasons lawyers are declining the case is because they fear legal and career reprisals.

There is a nefarious group that calls itself The 65 Project that has as its goal to intimidate lawyers into not representing Trump or anyone associated with him. They have threatened to file bar charges against any such lawyers.

I wrote an op-ed offering to defend pro bono any lawyers that The 65 Project goes after. So The 65 Project immediately went after me, and contrived a charge based on a case in which I was a constitutional consultant, but designed to send a message to potential Trump lawyers: If you defend Trump or anyone associated with him, we will target you and find something to charge you with. The lawyers to whom I spoke are fully aware of this threat -- and they are taking it seriously.... It may even be worse today....

Good lawyers... generally welcome challenges, especially in high-profile cases. This case is different: the threats to the lawyers are greater than at any time since McCarthyism. Nor is the comparison to McCarthyism a stretch. I recall during the 1950s how civil liberties lawyers, many of whom despised communism, were cancelled, and attacked if they dared to represent people accused of being communists."

[Darth Buckeye]

Yup. We were warned that if Trump was elected president then America would fall into fascism. They were right...but the fascism is not coming from Trump, but from the people going after him and anyone who defends him.

[myself]

The 65 Project sounds like a problem, but I think Trump's actual problems are:

a) He's terrible at paying his bills, lawyers included.
b) He's terrible at listening to advice, lawyers included.
c) He has a habit of encouraging subordinates to do unethical, even illegal, things, lawyers included.

Given those things there's a lot of risk taking on Trump as a client.

[Brett Bellmore]

I'm sure, but the 65 Project isn't helping, especially for the shallower pocket defendants below him.

[Nige]

Nothing is ever Trump's fault.

[Brett Bellmore]

"Just because you're paranoid doesn't mean nobody is out to get you."

Plenty of things are Trump's fault, the fact remains that he's been the subject of most of a decade long multi-front lawfare, and part of it is openly aimed at scaring lawyers out of being willing to represent him.

[Sarcastr0]

"We are holding accountable Big Lie Lawyers who bring fraudulent and malicious lawsuits to overturn legitimate election results."

Nothing about defending Trump.

Brett read (a pretty melodramatic) piece waxing about the persecution of Trump, and wrote it into the story he wanted to tell.

[Brett Bellmore]

Yes, Sarcastr0, the 65 project doesn't explicitly say that they'll go after any lawyer that defends anyone Trump related about anything.

It's just what they've been doing in practice.

Our legal system has been based on the idea that even the most awful defendant is allowed legal representation, and it's long been a basic principle that it is a noble calling for lawyers to provide that representation, that representing the evil doesn't mean YOU are evil.

But people who hate Trump have been blowing away every norm that gets in the way of hounding him, and this is just another one.

Yeah, I linked to an essay by some rando named Dershowitz, to demonstrate what's going on, and why we keep seeing such awful lawyering in these cases. Sorry that offends you.

[Nige]

'and why we keep seeing such awful lawyering'

Because he's a terrible client and doesn't pay and his lawyers keep getting into legal difficulties.

[Sarcastr0]

Have you any evidence that's what they've been doing in practice? Your linked story is long on opinion and anecdote, not a lot of proving.

[Brett Bellmore]

I linked to the essay by Dershowitz, you're free to state that you think he's lying about his own experience.

[Sarcastr0]

And, as others have pointed out, there's a much more likely explanation.

[ObviouslyNotSpam]

Dersh's own cites belie his claim that the 65 Project's goal is to intimidate lawyers "into not representing Trump or anyone associated with him", or that he was targeted for offering to "Dream Team" up with anyone targeted by them. The 65 Project's goals are clearly aimed at frivolous election-denial lawsuits, not "association with Trump", and were therefore consistently applied to Dersh himself when he began to defend Kari Lake's idiotic election-stealing claims.

[Rev. Arthur L. Kirkland]

That "major effort" to destroy the careers of the Trump lawyers is being conducted by . . . the members of Trump Litigation: Elite Strike Force.

Eastman, that un-American loser and disgraced Volokh Conspiracy dreamboy, did it to himself.

Jenna Ellis did it to herself -- when she engaged in the unprofessional and unlawful conduct, and when she admitted she did it.

Rudy Giuliani provided clownish legal services, then spouted defamatory lies to flatter a criminal client. He's still lying -- for which the just penalty would include the bankruptcy he claims is nigh.

Jeffrey Clark, Kenneth Chesebro (guilty plea), Alina Habba, Sidney Powell (guilty plea), L. Lin Wood and (less well-known) others -- all deserving victims of self-inflicted wounds.

[Bored Lawyer]

No. The reason is that Trump has stiffed so many lawyers, the only ones willing to work for him are either those too stupid to get a retainer, or those who are doing it for the fame.

If Trump paid his lawyers, there would be plenty willing to represent him, and who would give the middle finger to the intimidators.

[ah....Clem]

There's also the fact that he won't follow his counsel's advice and will throw a monkey wrench into the proceedings on a regular basis.

Who wants to take on a client who's going to undermine your best efforts?

[David Nieporent]

There is no such effort, and that is not why. Trump has terrible lawyers because he is a terrible client who is notoriously bad at paying his bills. And the people who hang in his orbit are similar. (To be clear, by "terrible client" I am not making a moral judgment. I am saying he says and does whatever the fuck he wants, not listening to his lawyers' instructions.)

Rudy Giuliani provides an instructive example: he's right now on trial (that is, a civil suit) for lying about the Georgia poll workers. He already lost one set of lawyers for not paying them. (Donald Trump, despite raising hundreds of millions of dollars from his marks for legal fees, is not paying Rudy's legal bills.) There have been numerous pretrial shenanigans on his part, but the trial has started, with the jury to decide damages. So at the outset of the case his lawyer basically begs for mercy from the jury. So what does Rudy proceed to do? He goes in front of the tv cameras at lunch, says that everything he's already been found liable for libeling them is actually true, that they stole the election, and that he's going to repeat that in court.

[Brett Bellmore]

I don't doubt that Trump is bad about paying his bills. He was long in the construction business, and I've dealt with contractors, and sometimes not paying the bill is the only recourse you have when they do shitty work, or walk off partway through the job. It's a routine thing in the business.

He may be under the impression that it's normal when dealing with lawyers, too...

[ObviouslyNotSpam]

Yeah, but he's 80...

[Darth Buckeye]

Trump is sued in NYC where everyone hates him. Project 65 threatens every lawyer who offers to defend Trump. Major law firms refuse to represent Trump. So Trump is found liable. Big surprise.

Problem is, the law is supposed to protect unpopular people. Hey, but Trump! We will regret this.

[Rev. Arthur L. Kirkland]

"Trump is sued in NYC where everyone hates him. "

Well, they know him best.

"Problem is, the law is supposed to protect unpopular people."

The other problem: You're an imbecile who should leave the reasoned debate to better Americans. Is the law supposed to protect serial killers, rapists of children, or the likes of Timothy McVeign, the Unabomber, Eric Rudolph, and John Eastman?

[Bored Lawyer]

All of those people are entitled to counsel and Due Process.
Which does not change what I said: Trump can't good counsel because he's a deadbeat.

[Rev. Arthur L. Kirkland]

Part of it derives from his deadbeat record.

Part of it derives from the point that many skilled, educated, decent, accomplished people do not wish to associate with boorish, bigoted, un-American, right-wing jerks.

Part of it derives from the likelihood that someone smart enough to be a capable lawyer would understand that representing a lying, selfish, vainglorious, antisocial, impulsive, vulgar criminal is not worth the substantial risk.

There likely are several other reasons a decent person with options would wish to avoid working with Donald Trump or anyone in Trump's orbit, but those likely suffice to disincline 99 percent of good lawyers to send an engagement letter to Trump World.

[ObviouslyNotSpam]

This is a roundabout way of saying that Trump's lawyers are all second rate. I'm shocked, shocked!

[ReaderY]

Mr. Trump answered the complaint in January 2029. He couldn’t have had very good counsel back then if they didn’t raise this obvious defense. Did nobody competent want to work for him at that point, or did he dismiss the competent people in favor of yes-lawyers?

[CJColucci]

Out of 61 comments, two, maybe three, touch at all on the merits of the decision.