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Donald Trump’s latest effort to wriggle out of liability for defaming advice columnist E. Jean Carroll met the same fate as all the others, with Judge Lewis Kaplan rejecting his motion for summary judgment and refusing to allow him to make a belated argument of absolute presidential immunity from civil suit.
In the pantheon of grumpy Lew Kaplan orders, this one hardly charts. But it does convey the court’s exhaustion with the plaintiff and his counsel Alina Habba after three years of dilatory maneuvers and shambolic lawyering across two lawsuits. Faced with the same category error confusing libel per se and slander per se, the court simply quotes its own ruling from Carroll II disposing of the argument. He merely sighed at Trump’s argument that his 2019 statement, virtually indistinguishable from the 2022 claims a jury just found him liable for, was a non-defamatory statement of opinion. And he simply bats away Trump’s claim that Carroll consented to be defamed by dint of accusing a famous man of sexual assault.
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Ms. Carroll’s generalized concern that she might be subject to the same attacks that other women, as she stated, have experienced after coming forward with their accusations against Mr. Trump does not demonstrate her awareness of and agreement to the possibility that Mr. Trump might defame her in response to her specific accusation of sexual assault and rape.
But Judge Kaplan did manage to work himself into his usual cantankerous lather over Trump’s untimely effort to invoke presidential immunity.
The court first quotes Trump’s motion for summary judgement, in which he argued that, as president, he simply had to assure the public that Carroll was a dirty liar:
As both the leader of the nation and head of the Executive Branch, [he] could not sit idly while a ‘media frenzy’ erupted around allegations that attempted to paint him as a rapist. Indeed, faced with this widely-reported, unprovoked attack on his character, the President had a duty to respond; at a minimum, this action was necessary to ‘maintain the continued trust and respect of [his] constituents’ and to ‘preserve his ability to carry out his [] responsibilities.’ . . . Thus, it cannot be reasonably disputed that [Mr. Trump’s] conduct was ‘presidential’ in nature because he was addressing an issue of grave public concern that weighed on the character and competency of the leader of the nation.
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But the court will not be opining as to whether the people have got to know whether or not their President is a crook, for the simple reason that “their President” didn’t raise this defense when he was sued in 2019, nor when he left office in 2021, hoping by then that the Second Circuit or DC Court of Appeals would rule that Trump was acting within the scope of his official duties and disappear the case under the Westfall Act.
Only when that failed did Trump make the executive immunity argument, insisting that he could not have waived it during the intervening four years because presidential immunity is unwaivable as a matter of separation of powers, depriving the court of subject matter jurisdiction.
Scoffing at the “patronizing” claim that courts have the ability to strip the executive of his right to waive immunity, the court restates its prior finding that Trump and his counsel have acted in “dilatory” fashion throughout the proceeding.
“There is no basis to risk prolonging the resolution of this litigation further by permitting Mr. Trump to raise his absolute immunity defense now at the eleventh hour when he could have done so years ago,” Judge Kaplan writes, noting that, if given leave to amend, Trump will be able to postpone reckoning yet further through another round of appeals.
The undue delay in asserting the defense thus was inherently and unfairly prejudicial even if this Court is mistaken in concluding that it is legally insufficient. Finally, there is the one more consideration. If Mr. Trump were granted leave to amend and this Court were to reject his absolute immunity claim, the order doing so likely would be appealable. No doubt Mr. Trump would appeal. And an appeal likely would cause “significant additional delays in this litigation arising from a defense that Trump chose not to assert for the first three years of the proceedings.
In the end, the entire 46-page order could have been reduced to a single sentence on page three: “His arguments are without merit.”
Or, as Carroll’s lawyer Roberta Kaplan put it, “Judge Kaplan’s denial of summary judgment confirms that once again, Donald Trump’s supposed defenses to E Jean Carroll’s defamation claims don’t work. Trump chose to waive presidential immunity and now he must live with the results of that decision.”
Carroll v. Trump I [Docket via Court Listener]
Carroll v. Trump II [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.