A lawyer for Donald Trump on Friday urged a U.S. appeals court to find the former president immune from author E. Jean Carroll’s defamation lawsuit arising from her allegation that he raped her, an argument Carroll’s lawyer said would put him “above the law.”
Alina Habba, Trump’s lawyer, told a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan that letting Carroll sue could undermine the presidency by unleashing “frivolous” lawsuits when the president speaks on public issues.
“This is not a political matter,” Habba told the judges. “This is not about being a Democrat or a Republican.”
Carroll, a longtime Elle magazine columnist, accused Trump in a June 2019 book excerpt of raping her in late 1995 or early 1996 in a dressing room at the Bergdorf Goodman department store in midtown Manhattan.
She sued Trump for defamation in November 2019 after Trump told a reporter he did not know Carroll, said “she’s not my type,” and accused her of concocting the rape claim to sell her book.
Carroll’s lawyer Joshua Matz said Trump acted with “private motives” when speaking and was not protected by a federal law that provides immunity to government employees from defamation claims.
“Denying a remedy in the name of the nation’s sovereign immunity is at odds with the maxim that nobody is above the law,” Matz said.
The appeals court did not immediately rule.
The judges gave strong signals they might defer a decision and ask a Washington-based court for guidance on whether the law there protected Trump.
“I don’t know whether D.C. would say ‘she’s not my type’ is part of the job of president,” Circuit Judge Guido Calabresi said.
‘CRUDE AND OFFENSIVE’
Circuit Judge Denny Chin asked Habba: “You are taking a categorical approach, then: Whatever he does, whatever he says, it’s an act of the United States?”
“That is my position to some extent,” Habba responded, “and frankly it has never been questioned until this point.”
William Nardini, the panel’s third judge, questioned whether there was a “limiting principle” against forcing presidents to measure their language whenever they talk, and not risk liability if they “lose their cool.”
Democratic President Joe Biden’s administration sided with Trump in the appeal, despite what Justice Department lawyer Mark Freeman called the Republican businessman-turned-politician’s “crude and offensive comments” in response to Carroll’s “very serious” accusations.
“Any president facing a public accusation of this kind in which the media is very interested would feel obliged to answer questions,” Freeman said.
Trump’s Justice Department, acting at the behest of then-Attorney General William Barr, tried to substitute the government as the defendant in Carroll’s case, which could doom it. The Biden administration essentially adopted that argument.
Carroll’s lawyers have said they want to question Trump under oath and obtain a DNA sample from him to compare against a dress Carroll said she wore during the alleged rape.
Trump said on Wednesday he plans to countersue Carroll under New York state law for interfering with his free speech.
Summer Zervos, a former contestant on Trump’s reality television show “The Apprentice” who accused him of sexual assault, abruptly ended her own defamation lawsuit against Trump on Nov. 12. Trump had called her claims a “hoax.”
The case is Carroll v Trump et al, 2nd U.S. Circuit Court of Appeals, Nos. 20-3977, 20-3978.
