Appeals panel questions why 'presidential immunity' argument wasn't pursued years ago in Trump case

NEW YORK (AP) — A federal appeals panel wants to know why lawyers for former President Donald Trump didn’t try years ago to use a claim of absolute presidential immunity to shield him from a defamation lawsuit by a woman who accused him of sexual assault.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan listened Monday as a lawyer for Trump argued that a lower-court judge was wrong to reject the defense after it was raised three years after columnist E. Jean Carroll first sued Trump.

The lawsuit seeks to hold Trump liable for comments he made while president in 2019 after Carroll said publicly for the first time in a memoir that Trump sexually abused her in the dressing room of a Manhattan luxury department store in 1996. Trump has adamantly denied ever encountering Carroll in the store or knowing her.

The court did not immediately rule.

Circuit judges Maria Araujo Kahn and Denny Chin questioned Trump attorney Michael Madaio about why Trump's lawyers waited until last December for the first time to claim that Trump was entitled to have the lawsuit about his 2019 statements tossed out on the grounds that he was protected by absolute presidential immunity.

In an August written opinion, Judge Lewis A. Kaplan rejected absolute presidential immunity as a defense not only on grounds that it was forfeited when lawyers waited so long to assert it, but also because it would not be appropriate even if had been asserted in a timely fashion.

“While there is a public interest in immunizing presidents for actions properly taken within the scope of their duties, there is a public interest also in ensuring that even presidents will be held accountable for actions that — as this Court already has determined in this case — do not come within that scope,” Kaplan wrote.

On Monday, Chin noted the three-year delay in making the claim before asking, “If that’s the case, how is it an abuse of discretion for Judge Kaplan to say it’s too late?”

Madaio responded that it would not prejudice Carroll's claims for the defense to be asserted now. He also insisted that absolute presidential immunity was a protection that cannot be surrendered by Trump or any other president.

Kahn asked Madaio later in the arguments why absolute presidential immunity was not asserted sooner.

Madaio did not directly answer the question.

The appeals court has taken the issue up in expedited fashion because Kaplan has scheduled a January trial for damages to be decided on the claims first made in 2019.

In the spring, a Manhattan federal court jury found that Trump sexually abused Carroll, but it rejected her claim that he raped her. It awarded Carroll $5 million for sexual abuse and defamation for comments he made last year. The trial stemmed from a lawsuit she filed last November after New York state temporarily allowed individuals who were sexually attacked, even decades ago, to sue for damages.

The verdict left the long-delayed defamation lawsuit she brought in 2019 to be decided. Kaplan has ruled that the jury's findings earlier this year applied to the 2019 lawsuit as well since Trump's statements, made in different years, were essentially the same in both lawsuits. He said the January trial will determine damages. Carroll is seeking over $10 million.

Trump is the early front-runner for the 2024 Republican presidential nomination.