“Re: Trump’s appeal of the $83 million judgment in the second E. Jean Carroll case: Please get into the specifics of ‘presidential immunity’ as it stands with the most recent Supreme Court ruling. I thought presidential immunity was only for ‘official’ acts as president — things that are part of his JOB. How can his defamation of Ms. Carroll be part of his ‘official acts’ as president? I am sincerely confused by this.” – LG
Hi LG,
The immunity issue certainly can be confusing, as can the litigation between E. Jean Carroll and Donald Trump. The president argues that those two issues intersect to his benefit. I’ll explain his argument and where this is all headed next.
As a quick refresher, Carroll brought two civil cases against Trump. In one of them, a jury awarded her $5 million after finding him liable for sexually abusing her in 1996 and defaming her about it in 2022, when he was between his two presidential terms. The Supreme Court in June denied his petition to review the case, but he is pressing a long-shot bid to persuade the justices to reconsider. They could reject that request as soon as Monday morning.
The other case involves the $83.3 million judgment that you’re asking about. In that one, a separate jury awarded Carroll those damages for statements Trump made in 2019, during his first term. In his recently filed petition to the justices, his lawyers argue that the judgment in that case runs afoul of the Supreme Court’s 2024 presidential immunity ruling “in at least two ways.”
First, they say, Trump can’t be held liable for statements he made “to the White House press publicly defending his character and fitness for the Presidency.” Second, they say, the jury that awarded the judgment and the judge who upheld it both improperly considered Trump’s official presidential acts in doing so.
On the first point, the president’s lawyers argue that his denial of Carroll’s accusations was an official act under the immunity ruling because it “had all the objective trappings of Presidential speech on ‘matters of public concern.’” That “matters of public concern” language is from the immunity ruling’s reference to presidents needing to be able to speak on such matters.
His lawyers further said that in denying Carroll’s accusations, he offered “a broader message” to the American people when he said that false accusations “diminish the severity of real assault” and that everyone “should condemn false accusations and any actual assault in the strongest possible terms.”
They said the same is true of a follow-up statement he made to the press before boarding Marine One. “President Trump answered the question about Ms. Carroll’s accusations after answering other questions on the stock market, tariffs, immigration enforcement, and potential hostilities with Iran,” they said in the petition, adding: “Accusations regarding the President’s fitness for office are unquestionably a matter of public concern — hence the press’s interest in Ms. Carroll’s allegations and in President Trump’s response.”
On the second point, regarding what Trump’s lawyers argue was the improper consideration of his official acts by the jury and the trial judge, they said that Carroll’s counsel “repeatedly urged the jury to punish President Trump especially harshly because he had ‘used the most famous platform on earth’ — the ‘place where Presidents have signed laws, declared wars, decided the fate of the nation’ — to deny Ms. Carroll’s accusations.” As for the judge, Trump’s lawyers argue that he wrongly upheld the jury’s damages award by citing “‘evidence that Mr. Trump used the office of the presidency — the loudest “bully pulpit” in America’ — to ‘broadcast his [alleged] lies.’”
Trump’s lawyers added that “alleged” in brackets in their petition, and they went on to argue that the jury and the judge engaged in “exactly the sort of ‘second-guessing’ of the ‘propriety’ of official Presidential acts” that the immunity ruling forbids. “Indeed,” they argued, “the jury was improperly invited to punish a President more severely than a private citizen, because he had ‘used the office of the presidency’ to commit the alleged” defamation.
To be clear, this is Trump’s framing of both the facts and the law. We can safely expect Carroll’s lawyers to paint a different picture when they file their brief opposing review, which is due Aug. 31. They have thus far successfully defended both of their wins on appeal — although that success has come over the dissent of Trump-appointed appellate judges. We won’t likely know whether the justices will grant review of this new petition until the fall, at least. It takes four justices on the nine-member bench to agree to grant review.
As I see it, this latest petition stands a better chance of gaining that review than the petition in the $5 million case, which the justices have already rejected. That’s not because Trump raises good arguments, necessarily, but rather because he raises the type of issues that theoretically affect the presidency. That could make the justices more interested in this latest petition than they were in the $5 million case. The new petition also has the support of the Justice Department, which can give his appeal more legitimacy in the eyes of at least some of the justices.
That doesn’t mean that they will grant review of the $83.3 million case. But unlike the $5 million case (which could effectively be settled as soon as Monday if the justices deny Trump’s rehearing petition), the fate of the larger damages award is poised to be an open question as we head into the fall.
The justices are due back on the bench in October to start their next term, and they aren’t on any deadline to decide whether to grant review of the new petition. Even if they do ultimately grant review, that would only be an agreement to consider Trump’s appeal. It doesn’t guarantee how they would rule in the end.
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