NEW YORK — A lawyer for Donald Trump told a federal appeals court on Monday that the former president should be allowed to assert presidential immunity in response to a defamation lawsuit by the writer E. Jean Carroll, further pressing his bid to narrow the case in advance of its January trial date.
Trump’s argument comes as he is pressing a similarly aggressive immunity defense in his federal criminal case stemming from his efforts to subvert the 2020 election. Trump is “absolutely immune from prosecution” in that case, his lawyers contended in court papers this month — an argument that special counsel Jack Smith said is in sharp conflict with American history and the Constitution.
In the Carroll case on Monday, Trump lawyer Michael Madaio told a three-judge panel of the 2nd Circuit Court of Appeals that presidential immunity is “an absolute and non-waivable protection.”
“If this court does not overturn the lower court’s ruling,” Madaio said, “a president, for the first time in our nation’s history, will be held civilly liable for his official acts.”
Trump is arguing that he cannot be sued over comments he made about Carroll in 2019, while he was president. At the time, Trump accused her of peddling a false rape accusation against him, and he suggested that she was motivated by money. A district judge rejected Trump’s immunity argument over the summer, prompting him to appeal to the 2nd Circuit. The three-judge panel, consisting of all Democratic appointees, gave little indication of how it was inclined to rule during the 45-minute argument on Monday.
Carroll has already won one civil trial against Trump. Earlier this year, after a trial in her other lawsuit accusing Trump of raping her in a luxury department store in the 1990s, a jury found that Trump sexually abused Carroll and that he defamed her in 2022 when he called her account a “hoax.” The jury ordered Trump to pay Carroll $5 million. Trump has appealed that verdict.
The upcoming January trial concerns a separate lawsuit from Carroll over Trump’s comments in 2019, when he was still president, and comments he made earlier this year on CNN in the wake of the verdict in the first Carroll trial.
In September, a judge ruled that the jury hearing the January trial will need only to determine how much money Trump must pay Carroll after the judge found Trump’s statements were, in fact, defamatory. But if an appeals court adopts Trump’s immunity theory, the issue of Trump’s liability for the 2019 statements could become moot.
On Monday, Carroll’s lawyer, Joshua Matz, asked the panel of judges to reject Trump’s arguments about presidential immunity, invoking the events connected to the Jan. 6, 2021, riot at the Capitol as an example of when a president should be held legally accountable for his public statements.
“I don’t think we are in the realm of hypotheticals in acknowledging that there are circumstances in which somebody who holds the office of the president may engage in public speech on matters that have nothing to do with the operation or administration of the government,” Matz said. When presidents make statements that “cause significant harm to private citizens,” he continued, “it would be in many ways inconsistent with living in a presidential rather than a monarchical system to say that they are wholly immune for their conduct.”
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