Trump waived presidential immunity defense in Jean Carroll's defamation case

Waiver is a scary word for lawyers. It means the lawyer failed to do something and that omission has consequences down the road. Clients may waive also, but usually the lawyer is blamed because the lawyer knows to assert certain points and most clients are not legal experts In this case, the Court finds that Donald Trump's lawyers waived his right to assert presidential immunity in the E. Jean Carroll defamation case.

The case is Carroll v. Trump, issued on December 13. As the world knows, Carroll sued Trump for defamation after he disparaged her following her public allegation that he had raped her. Trump was president when he said this. That case went to trial in federal court and Carroll prevailed on her defamation claim as well as her claim that Trump had sexually assaulted her. The jury awarded several millions in damages.

When Trump answered Carroll's suit, he did not assert a presidential immunity defense. His lawyers did not assert this immunity until the summary judgment motion was filed. Is that delay enough to waive the immunity defense? Yes, says the Court of Appeals (Cabranes, Chin and Khan). 

The issue of whether presidential immunity is waivable is a matter of first impression. What it boils down to is whether this immunity is a jurisdictional right. If so, then it is not waivable. Jurisdiction is not a waivable matter, and certain defenses are so fundamental to the legal system that they can be asserted at any time. Writing on a clean slate, the Court reviews Supreme Court cases on immunity and jurisdictional waiver in finding that presidential immunity is in fact waivable. Trump's lawyers should have raised immunity as an affirmative defense but they did not do so. Other forms of immunity, such as absolute and qualified immunity in civil rights cases are not waivable, and that logic applies to presidential immunity.

To be fair, prior cases from the Supreme Court have thrown around the word "jurisdiction" in a manner that suggest that this kind of immunity is not waivable. But in examining these cases carefully, the Court of Appeals says the Supreme Court never really intended to say that this immunity is a jurisdiction matter. The Second Circuit sums things up this way:

To  summarize:  notwithstanding  scattered  references  to “jurisdiction” in some presidential immunity cases, the Supreme Court has indicated that immunity defenses are not jurisdictional, and that presidential immunity is to be treated like other forms of immunity that Defendant does not dispute are waivable. Moreover, Nixon—the leading presidential immunity case—treats presidential immunity  as  nonjurisdictional.  Finally,  recognizing presidential immunity as waivable reinforces, not undermines, the separation of powers and the President’s decisionmaking authority by affording the President an opportunity to litigate if he so chooses. Accordingly, we hold that presidential immunity is waivable.

Another issue: Trump wants to amend his answer to assert this immunity. Too late, says the Court of Appeals. Courts will allows parties to amend their complaints/answers unless there is prejudice to their adversaries. So we have a lengthy discussion on "prejudice" in this context. The Court says that Carroll would be prejudiced by a late amendment to the answer because the immunity would require additional discovery that never happened in the absence of the immunity defense. What discovery you ask? For starters, Carroll's lawyers would have to explore whether Trump's public response to Carroll's rape allegations were pursuant to his presidential duties. As the Court of Appeals says:

Had Defendant raised presidential immunity before discovery closed, Plaintiff claims, she would have engaged in discovery on whether Defendant’s actions fell within his official duties. First, Plaintiff would have asked Defendant for more detail on the process through which he issued and prepared the June 2019 statements, including how the process compared to his pre- and post-presidential processes.65 Second, Plaintiff would have sought third-party discovery from White House personnel allegedly involved in preparing and issuing the statements.Third, Plaintiff would have sought expert testimony from former White House officials and requested internal White House documents from the National Archives regarding former presidents’ processes for issuing statements denying wrongdoing.

In other words, a lot of work would have been devoted to exploring the presidential immunity issue had Trump raised it in his answer. It is too late for that as the case has already gone to trial and another trial on these issues is on the way.