Carroll v. Trump

88 F.4th 418

E. Jean CARROLL, Plaintiff-Counter-Defendant-Appellee, v. Donald J. TRUMP, in his personal capacity, Defendant-Counter-Claimant-Appellant.

No. 23-1045-cv (L)

No. 23-1146-cv (Con)

August Term 2023

United States Court of Appeals, Second Circuit

Argued: October 23, 2023

Decided: December 13, 2023

On Appeal from the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge).

Joshua Matz (Kate Harris, Roberta A. Kaplan, Trevor W. Morrison, on the brief), Kaplan Hecker & Fink LLP, New York, NY, for Plaintiff-Counter-Defendant-Appellee E. Jean Carroll.

Michael T. Madaio (Alina Habba, on the brief), Habba Madaio & Associates LLP, Bedminster, NJ, for Defendant-Counter-Claimant-Appellant Donald J. Trump.

Before: Cabranes, Chin, and Kahn, Circuit Judges.

José A. Cabranes, Circuit Judge:

Ordinarily, defendants are deemed to have waived or forfeited defenses that they did not raise at the outset of the litigation.¹ But defenses based on subject-matter jurisdiction—"the courts' statutory or constitutional power to adjudicate the case"²—are nonwaivable. Defendants can raise such defenses "at any stage in the litigation."³

Presidential immunity is a defense that stems from "the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history," and entitles the President to "absolute . . . immunity from damages liability for acts within the outer perimeter of his official responsibilities."⁴ For example, the Supreme Court held in Nixon v. Fitzgerald that presidential immunity protected former President Richard Nixon from a lawsuit by an ex-Air Force employee who alleged that Nixon fired him in retaliation for testifying before Congress about cost overruns.⁵ Conversely, the Court held in Clinton v. Jones that presidential immunity did not shield President Clinton from civil liability for actions allegedly taken when he was Governor of Arkansas because they were not official presidential acts.⁶

This case presents a vexing question of first impression: whether presidential immunity is waivable. We answer in the affirmative and further hold that Donald J. Trump ("Defendant") waived the defense of presidential immunity by failing to raise it as an affirmative defense in his answer to E. Jean Carroll's ("Plaintiff's") complaint, which alleged that Defendant defamed her by claiming that she had fabricated her account of Defendant sexually assaulting her in the mid-1990s.

Accordingly, we AFFIRM the July 5, 2023 order of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge) denying Defendant's motion for summary judgment insofar as it rejected Defendant's presidential immunity defense and denied his request for leave to amend his answer to add presidential immunity as a defense. We likewise AFFIRM the District Court's August 7, 2023 order insofar as it struck Defendant's presidential immunity defense from his answer to Plaintiff's amended complaint. We DISMISS for lack of appellate jurisdiction the appeal of the District Court's July 5, 2023 order insofar as it determined that Defendant's statements about Plaintiff were defamatory per se. Finally, we REMAND the case to the District Court for further proceedings consistent with this opinion.

I. BACKGROUND

The relevant facts in this appeal are undisputed. We summarize them below.

A. Factual Background

On June 21, 2019, Plaintiff publicly accused Defendant of sexually assaulting her in the mid-1990s.⁷ Defendant, who was President of the United States at the time of the accusations, denied Plaintiff's claims in a series of public statements. In the first, released that same day, he claimed that "it never happened," he "never met" Plaintiff, and that "[s]he is trying to sell a new book—that should indicate her motivation."⁸ The next day, he stated that "[t]his is a woman who has also accused other men of things . . . It is a totally false accusation."⁹

On November 4, 2019, Plaintiff responded by suing Defendant for defamation in New York State Supreme Court. Defendant filed his answer on January 23, 2020. On September 8, 2020, the United States removed the case to the United States District Court for the Southern District of New York pursuant to the Westfall Act.¹⁰

B. Procedural Background

On December 22, 2022, Defendant moved for summary judgment.¹¹ In his reply brief, filed on January 19, 2023, he raised for the first time the argument that presidential immunity barred liability. On July 5, 2023, the District Court denied Defendant's motion for summary judgment after determining that Defendant waived presidential immunity and denied Defendant's request for leave to amend his answer to add presidential immunity as a defense ("July 5 Order").¹² The Court denied Defendant's request for leave to amend on two independent grounds: first, that the request was futile, and second, that Defendant unduly delayed in raising the defense and granting the request would prejudice Plaintiff.¹³ The Court also rejected Defendant's argument that his statements were not defamatory per se.¹⁴ Defendant appealed the July 5 Order on July 19, 2023.

Meanwhile, on May 22, 2023, Plaintiff filed an amended complaint that added, inter alia, more statements by Defendant alleging that Plaintiff's accusations were false and politically motivated. Defendant filed his answer to Plaintiff's amended complaint on June 27, 2023. The amended answer for the first time raised presidential immunity as an affirmative defense. On August 7, 2023, the District Court struck Defendant's presidential immunity defense from his amended answer on the ground that it had been waived and, even if not, "would have been insufficient as a defense" ("August 7 Order").¹⁵ On August 10, 2023, Defendant appealed the August 7 Order.

Defendant sought a stay from the District Court, arguing that his appeal of the District Court's July 5 Order, which rejected Defendant's presidential immunity defense, divested the District Court of jurisdiction. On August 18, 2023, the District Court denied Defendant's stay motion upon determining his appeal to be frivolous.¹⁶ Defendant then sought an emergency stay from our Court, which a motions panel denied on September 13, 2023. The same day, the motions panel ordered the consolidation of Defendant's appeals of the July 5 Order and the August 7 Order and set an expedited briefing schedule.

II. DISCUSSION

This case concerns appeals from two related orders by the District Court. The July 5 Order denied Defendant's motion for summary judgment on the ground that Defendant waived his presidential immunity defense and further denied Defendant's request for leave to amend his answer to add presidential immunity as an affirmative defense. The August 7 Order struck Defendant's affirmative defense of presidential immunity from his answer to Plaintiff's amended complaint on the ground that Defendant had already waived this defense.

We hold that presidential immunity is waivable and that Defendant waived this defense.¹⁷ Thus, the District Court did not err in its order denying Defendant's motion for summary judgment, nor did it err, much less "abuse its discretion," in denying his belated request for leave to amend his answer to add presidential immunity as a defense.¹⁸ We also hold that the District Court did not err in striking Defendant's presidential immunity defense from his answer to Plaintiff's amended complaint.¹⁹ Nor did the District Court err in retaining jurisdiction after Defendant filed his notice of appeal on July 19, 2023.²⁰ Finally, we hold that we lack appellate jurisdiction to consider whether Defendant's statements were defamatory per se.²¹

A. Whether Defendant Waived Presidential Immunity²²

Is presidential immunity waivable? And if so, did Defendant waive it? The answer to both questions is yes.

1. Whether Presidential Immunity Is Waivable

Defendant argues that presidential immunity is a jurisdictional defense and is thus nonwaivable.²³ We disagree. The Supreme Court recognized in Nevada v. Hicks that "[t]here is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court's jurisdiction."²⁴ And we have repeatedly distinguished absolute immunity defenses from defenses based on subject-matter jurisdiction.²⁵

Rather than acknowledge Hicks or our precedents, Defendant points to scattered references to "jurisdiction" in Supreme Court cases involving presidential immunity.²⁶ But as we have recently been reminded by the Supreme Court, "[t]he mere fact that [the Supreme] Court previously described something without elaboration as jurisdictional . . . does not end the inquiry."²⁷ We must ask if the prior decision addressed whether the provision or defense is " 'technically jurisdictional'—whether it truly operates as a limit on a court's subject-matter jurisdiction—and whether anything in the decision 'turn[ed] on that characterization.' "²⁸ Accordingly, "[i]f a decision simply states that 'the court is dismissing "for lack of jurisdiction" when some threshold fact has not been established,' it is understood as a 'drive-by jurisdictional ruling' that receives no precedential effect."²⁹

None of the cases on which Defendant relies indicate that presidential immunity is jurisdictional—indeed, quite the opposite. Defendant relies primarily on the following passage in Nixon:

[A] court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. When judicial action is needed to serve broad public interests . . . the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President's official acts, we hold it is not.³⁰

But Nixon hurts, not helps, Defendant's case. The passage quoted above follows a threshold analysis of whether the Supreme Court had...