Trump is testing how far presidential immunity will go to save him millions
In January 2024, a jury ordered Trump to pay the millions in defamation damages for his many attacks on the writer E. Jean 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 to bring it up.
But last year, the Supreme Court adopted a more robust 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.
"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.
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 on social media and at campaign 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.
After the trial for the second lawsuit was over, the Second Circuit Court of Appeals cleared the way for a second trial over the first lawsuit, agreeing with a lower court that Trump had waived the right to argue that he had presidential immunity because he brought it up too late. The Justice Department — then under the Biden administration — also dropped its position that Trump's statements about Carroll were part of his presidential duties, writing in a court filing that "sexual assault was obviously not job-related."
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 settled for $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
Trump's appeal brief calls the case "a miscarriage of justice" and says the Second Circuit got it wrong.
"Presidential immunity shields from liability President Trump's public statements issued in his official capacity through official White House channels," they wrote in a 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.
"If there were ever a case where immunity does not shield a President's speech, this one is it," she wrote. "Donald Trump was not speaking here about a governmental policy or a function of his responsibilities as President. He was defaming Carroll because of her revelation that many years before he assumed office, he sexually assaulted her."
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.
Court filings indicate Justin D. Smith, a Missouri-based attorney at Sauer's former law firm, will argue against Kaplan at Tuesday's hearing. Smith didn't respond to a request for comment from Business Insider.
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.
In that case, Trump's lawyers said additional arguments should be held in federal courts, not state courts, which would make future decisions easier to appeal directly to the Supreme Court.
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