Trump appeal of E. Jean Carroll verdict returns to court
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Left inset: Journalist E. Jean Carroll exits the courthouse following the damages trial against Donald Trump at the Manhattan Federal Court on January 26, 2024, in New York City (John Angelillo, Alamy Live News via AP). Main: Trump departs from his apartment building on January 26, 2024, a day after leaving a New York courtroom visibly upset that he wasn’t allowed the chance to contest E. Jean Carroll’s allegations of sexual abuse. (AP Photo/Yuki Iwamura).

Despite unsuccessful efforts to complicate or postpone oral arguments on at least two occasions, Donald Trump’s legal team returned to federal court on Tuesday to once again contest the $83 million defamation verdict awarded to advice columnist E. Jean Carroll at the beginning of 2024.

The hearing was overseen by Senior U.S. Circuit Judge Denny Chin, appointed by Barack Obama, along with U.S. Circuit Judges Sarah Merriam and Maria Araújo Kahn, who were both appointed by Joe Biden, for the 2nd U.S. Circuit Court of Appeals.

Following an en banc rehearing denial in Trump’s appeal of a $5 million civil jury verdict that found him liable for sexually abusing and defaming Carroll, and following the 2nd Circuit panel’s refusal to substitute the DOJ for Trump as defendant-appellant in the defamation case we now discuss, the panel also declined the president’s request to push back scheduled oral arguments.

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That denial swiftly brought forth the Tuesday morning proceedings, during which Trump attorney Justin Smith began by calling the Carroll verdict a “miscarriage of justice” and one that “severely damages the presidency.”

After repeating the claim that Trump never met Carroll, even though there is a photo of them meeting in the late 1980s, Smith slammed the trial judge, Senior U.S. District Judge Lewis Kaplan, for rulings that “prevented” Trump from “putting on critical evidence,” and asserted that Trump never actually waived his immunity defense.

Donald Trump, E. Jean Carroll

Donald Trump, E. Jean Carroll, Carroll’s then-husband John Johnson, and Trump’s then-wife Ivana Trump meeting at a party in 1987 (Carroll complaint).

Chin jumped in to ask Smith “didn’t we already so hold” years ago that Trump’s immunity defense was waived?

Smith argued that this immunity is “not waivable,” but regardless, the intervening 2024 U.S. Supreme Court decision in Trump v. United States — which granted wide immunity to presidents — made clear that presidential immunity is “on the same footing as Speech or Debate immunity” for lawmakers, as seen in the 1979 case U.S. v. Helstoski.

When the circuit judges noted that the issue of waiver wasn’t addressed by SCOTUS, Smith replied that “it didn’t need to be.”

Kahn, for her part, asked why now was the appropriate time to appeal and why the defense didn’t raise the issue two years ago and not until after trial.

Disputing that “factual record,” Smith stated “there has been a consistent assertion of presidential immunity.”

Not so fast, said Kahn, noting that Trump’s prior private counsel Alina Habba, currently the acting U.S. attorney for the District of New Jersey, conceded two years ago that if presidential immunity was waivable then it was waived.

Alina Habba

Alina Habba pictured during an appearance on Fox News, May, 9, 2024 (Fox News).

Smith responded that the “ordinary rules for waiver no longer apply,” again citing Trump v. United States and Helstoski. The latter case dealt with a New Jersey congressman who was indicted for corruption, who was repeatedly called before a grand jury, and who eventually asserted immunity based on the Speech or Debate Clause.

Arguing that there’s been “no finding” that Trump “unequivocally” waived immunity, Smith again asserted that Trump v. United States “casts doubt” on the 2nd Circuit panel’s opinion from last time and necessitates a new ruling.

Carroll attorney Roberta Kaplan spoke next, noting her client was seated behind her in court.

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