By Jonathan Stempel
NEW YORK A federal appeals court on Monday questioned why former U.S. president Donald Trump waited more than three years to claim that he deserved absolute immunity from a defamation lawsuit by writer E. Jean Carroll for denying that he raped her.
Two members of a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan challenged Trump's lawyer Michael Madaio during oral arguments in Trump's appeals of pivotal rulings by U.S. District Judge Lewis Kaplan.
Madaio called presidential immunity an "absolute and nonwaivable protection" that judges could not override.
Carroll, a former Elle magazine columnist, sued Trump in November 2019 over his denial five months earlier that he had raped her in a midtown Manhattan department store dressing room in the mid-1990s. Trump, who was president in 2019, said Carroll was "not my type" and suggested that she made up the rape claim to boost sales of her forthcoming memoir.
Trump is appealing Kaplan's June 29 refusal to dismiss Carroll's lawsuit, and the judge's Aug. 7 dismissal of some of his defenses and a defamation counterclaim against her.
Kaplan ruled on Sept. 6 that Trump's denial was defamatory, leaving only the issue of damages for the trial scheduled for Jan. 16, 2024. Carroll is seeking at least $10 million.
On May 9, another jury awarded Carroll $5 million for sexual assault and defamation, though not rape, after Trump last October again denied that the rape occurred. Trump is also appealing that verdict.
During Monday's arguments, Madaio said Trump acted in the "outer perimeter" of his job as president by responding to Carroll's accusations. Madaio also said denying immunity would disrupt the constitutional separation of powers between the U.S. government's executive and judicial branches.
Trump "faced an unprecedented, unprovoked attack on his character," Madaio said. "As both the leader of a nation and the head of the executive branch, he could not sit idly by."
Circuit Judge Denny Chin questioned why Trump waited until December 2022 to claim immunity, even as the former president raised other defenses, after both sides had gathered evidence.
"This was litigated for three years without the assertion of the defense," Chin said. "How was it an abuse of discretion for Judge Kaplan to say it was too late?"
'HOKUM'
Carroll, 79, has long accused Trump, 77, of using stall tactics to keep her case from getting to trial. She proposed the $10 million damages award after Trump disparaged her as a "whack job" in a CNN town hall-style event following the previous verdict.
Carroll's lawyer Joshua Matz rejected any suggestion that Trump could not waive absolute immunity because "broader structural considerations" were at play.
"That is hokum," Matz told the appeals court. "A party who believes that they are holding onto absolute immunity from suit does not behave the way that Mr. Trump behaved it his case."
The appeals court did not say when it will rule.
Trump's defamation counterclaim stemmed from his assertion that Carroll tarred his reputation by maintaining after the May verdict, including on CNN, that he had raped her.
Kaplan on Aug. 18 certified that Trump's appeal of his refusal to dismiss the case was "frivolous."
The appeals court could order Trump to pay damages and costs if it ends up agreeing with the judge.
Trump is the frontrunner for the Republican nomination to challenge Democratic President Joe Biden in the 2024 U.S. election, despite facing four federal and state criminal indictments. Trump has pleaded not guilty in those cases.
He also is a defendant in a civil fraud trial in which New York Attorney General Letitia James has accused him of unlawfully inflating his assets and net worth to dupe lenders and insurers.
The case is Carroll v. Trump, 2nd U.S. Circuit Court of Appeals, Nos. 23-1045 and 23-1146.
(Reporting by Jonathan Stempel in New York; Editing by Will Dunham)