Trump's lawyers say the Supreme Court's sweeping presidential immunity ruling should save him $83.3 million
Lawyers for Trump and E. Jean Carroll argued Tuesday morning at the Second Circuit Court of Appeals over whether the president had, years earlier, waived the right to argue he had presidential immunity by failing to bring it up until late in the litigation process.
Justin D. Smith, who represents Trump, argued that presidential immunity is akin to the robust immunity members of Congress have through the Constitution's speech and debate clause, rather than the more easily waived immunity given to prosecutors and judges.
"Presidential immunity — even if it could be waived at all, which is not the case — cannot be inadvertently forfeited," Trump's lawyers argued in their appeal brief for the Carroll case.
In January 2024, a jury ordered Trump to pay $83.3 million in defamation damages for his many attacks on Carroll, where he disparaged her as a liar and insulted her appearance after she accused him of sexually assaulting him in the 1990s at a Bergdorf Goodman department store near Trump Tower in Manhattan.
According to a Forbes estimate, Trump's net worth is $5.2 billion. It's boomed since he won the 2024 presidential election thanks to his ownership of Truth Social and numerous crypto investments.
The Carroll verdict is about 1.6% of his estimated worth.
Before the trial, the Second Circuit Court of Appeals ruled that Trump had forfeited the right to argue he had presidential immunity in the civil case because he waited too long.
But last year, the Supreme Court adopted a more powerful conception of presidential immunity — one that protects presidents from criminal cases. That broader, more sweeping view should also cover Trump in the Carroll case and wipe away the massive jury award, the president's lawyers now argue.
Carroll took Trump to trial twice
Carroll's first defamation lawsuit against Trump, filed in 2020, was stalled for years in courts in New York and Washington, DC, because it concerned comments Trump made while he was still president.
The Justice Department argued at the time that Trump was immune from the lawsuit because of the Westfall Act, a law that protects government employees from legal action for statements they make as part of their job.
After completing his first term in office, Trump continued to attack Carroll online and at rallies. Carroll filed a second lawsuit against Trump in November 2022, alleging defamation as well as sexual abuse.
That second lawsuit, unencumbered by questions of presidential immunity, went to trial in 2023 in Manhattan federal court. In May of that year, the jury found Trump liable for sexual abuse and defamation and ordered him to pay Carroll $5 million.
Carroll's first lawsuit finally went to trial in January of 2024. After not showing up to the first trial, Trump briefly testified in the second.
Because another jury had already found Trump liable for defamation for calling Carroll a liar over her sexual abuse claims, the jury in the second trial only had to decide how much Trump would pay in additional damages for statements he made while he was president, as well as other insults he had hurled at Carroll since the conclusion of the first trial.
They landed at $65 million in punitive damages, $7.3 million to compensate Carroll, and $11 million to help repair her reputation — a total of $83.3 million.
Trump invoked the Supreme Court's recent immunity decision
"Presidential immunity shields from liability President Trump's public statements issued in his official capacity through official White House channels," Trump's lawyers wrote in an appeal brief.
Carroll's attorney Roberta Kaplan argued in her own brief that presidential immunity — like all other forms of immunity in the American legal system — can be waived. The Supreme Court's decision didn't indicate otherwise, she said in court.
"It doesn't use the word 'waiver,' and it doesn't speak to waiver," she told the judges Tuesday.
Smith argued that, because last year's Supreme Court decision didn't address issues of waivability, the appellate judges should instead look at other precedents related to speech-and-debate immunity for members of Congress.
"Waiver was not addressed in that case because it didn't need to be," he said.
Kaplan also addressed questions from the judges about the enormous damages the jury awarded Carroll. She said it was justified because of the threats Carroll received after accusing Trump of sexual assault, and because of the "disdain" Trump showed for Carroll and the court during the trial, as well as his continuing to defame her at press conferences while the trial was ongoing.
"They threatened her with rape and with killing by every means known to man," Kaplan told the judges of the many messages Carroll received following Trump's criticism.
Kaplan declined to comment on the arguments after the hearing.
"We thank the court for its time," Kaplan told BI, before turning around to speak to Carroll, who sat behind her during the arguments.
John Sauer, who argued the immunity case on Trump's behalf before the Supreme Court, also filed appeal briefs in the Carroll case. In September, Sauer urged the Second Circuit in an oral argument to toss the jury verdict against Trump in the first Carroll trial, in part because it featured testimony from other women who said Trump sexually abused them. The court upheld that verdict earlier this month.
Sauer is now serving as the Justice Department's solicitor general in the second Trump administration. And on Wednesday, the court denied a motion from the Justice Department to take over Trump's defense.
Smith, a Missouri-based attorney at Sauer's former law firm, argued against Kaplan at Tuesday's hearing instead.
Following the hearing, a spokesperson for Trump's legal team referred to Carroll's cases as "the Democrat-funded Carroll Hoaxes" and said the Justice Department should take over Trump's defense "because Carroll based her false claims on the President's official acts, including statements from the White House."
"President Trump will keep winning against Liberal Lawfare, as he is focusing on his mission to Make America Great Again," the spokesperson said.
In two of Trump's other high-profile appeals, Trump has retained the Big Law firm Sullivan & Cromwell. They're fighting a half-billion-dollar civil fraud judgment against the Trump Organization as well as a Manhattan jury verdict that found Trump guilty of 34 counts of falsifying business documents as part of the Stormy Daniels hush-money scandal.
In the criminal case, Sullivan & Cromwell — which argued their appeal before the Second Circuit earlier this month — also leans heavily on the Supreme Court's immunity decision.
Sullivan & Cromwell cochair Robert Giuffra and Boris Epshteyn, Trump's senior personal legal counsel, attended Tuesday's arguments.
In the elevator following the arguments, Epshteyn put his hand on Smith's shoulder.
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