During brief oral arguments on Tuesday, a trio of judges for the Second Circuit Court of Appeals appeared skeptical of Trump’s insistence that the Supreme Court’s presidential immunity ruling means he doesn’t have to pay nearly $90 million in defamation damages he owes to writer E. Jean Carroll.
Carroll’s attorney Roberta Kaplan reminded the appellate court on Tuesday that while Trump had a chance to raise presidential immunity as a defense years ago — before the trial even formally got underway — he didn’t. And, she reminded, the Second Circuit had already found that because he waited too long to raise immunity the first time, he had essentially forfeit that defense.
Trump’s attorney Justin Smith, however, disagreed, telling the judges that the waiver never needed to be made because presidential immunity can’t be waived.
But that wasn’t what Trump’s lawyers said two years ago when the trial was unfolding.
Trump’s then-lawyer Alina Habba had expressly told the New York judge overseeing the trial that if presidential immunity was waivable, then it was waived in this case, Kaplan said Tuesday.
It is up to the appeals court now to decide whether Trump can skirt the civil verdict or if he must start paying on the sum. (What started at $83.3 million has now grown to $90 million thanks to accruing interest.)
If Trump loses this latest battle, he can ask the full panel of the Second Circuit — there are 13 judges total — to reconsider the question or he can take the matter straight to the Supreme Court.
The Second Circuit has already dealt Trump one defeat when it comes to matters related to the veteran writer. Last week, the appellate court rejected Trump’s bid to relitigate the jury’s verdict finding that Trump both sexually assaulted Carroll in a department store dressing room in 1996 and defamed her in 2022.
