In America: Latest Petition to Supreme Court on Trump’s Defamation Case
The Supreme Court was recently asked to take up President Trump’s appeal of the defamation case brought against him by E. Jean Carroll. Carroll, a prominent advice columnist and journalist famous for her “Ask E. Jean” column, accused President Trump of sexually assaulting her at a Manhattan department store in the mid-1990s. These revelations emerged in 2019 after Carroll published a memoir detailing the incident. Carroll also filed lawsuits in 2023 and 2024 against President Trump for two distinct yet related instances of defamation.
In May 2023, a federal jury in New York found President Trump liable for battery and defamation. Carroll was awarded around $5 million in damages for both claims, but the damages payment was held up while President Trump’s legal team attempted to appeal the case. Last month, Carroll finally received the payment.
A second defamation case was also brought by Carroll’s legal team in 2024, resulting in a federal jury awarding Carroll $83.3 million in damages for Trump’s public attack on Carroll in 2019. President Trump’s legal team had adopted a similar strategy to delay Carroll from receiving the damages payment while they appealed the case to the Supreme Court. Additionally, they continue to appeal the roughly $5 million in damages paid to Carroll in the 2023 case, despite the money already being fully paid out to her.
At the center of President Trump’s legal defense are two questions related to presidential immunity. The first question addresses the application of presidential immunity, while the second concerns how the US legal system distinguishes between a federal employee (i.e., the president as an individual) and the federal government (i.e., the president as a representative of the federal government) in a court case.
Part of the legal system’s solution to these tensions is the Westfall Act, which governs when a federal employee can be sued as an individual and when they are granted legal immunity. A notable part of this procedure is that the Attorney General (AG) must request certification that the employee in question was acting within the scope of their official duties. This certification forces the lawsuit against the employee to morph into a lawsuit against the federal government. If the AG does not certify that a federal employee’s actions were within the scope of their official duties, that federal employee may be sued as an individual.
President Trump’s legal team claims that his 2019 statements about Carroll were made within the scope of official presidential communications. Additionally, they claim that the federal appeals court should have granted former AG Pam Bondi’s request to certify these statements as presidential communications.
While this request was never granted during the trial, President Trump’s 2019 statements about Carroll were already certified by former AG William Barr in 2020. The certification power of the AG would become politicized, as former AG Merrick Garland (who was appointed during the Biden administration) withdrew Barr’s certification in 2023. Last year, former AG Pam Bondi would unsuccessfully request the 2nd Circuit federal appeals court to recertify President Trump’s 2019 statements. The 2nd Circuit reasoned that former AG Bondi’s certification was invalid because the certification must have happened before the 2024 trial.
President Trump’s private lawyer, Robert Giuffra, wrote in the petition filing to the Supreme Court that the 2nd Circuit’s rationale for the decision did not determine whether President Trump’s statements were entitled to immunity. Returning back to the core legal questions presented by this case, Giuffra argues that the 2nd Circuit’s disregard for determining presidential immunity establishes a dangerous precedent.
“The threat of even a single damages judgment based on official acts will render all Presidents “unable to boldly and fearlessly carry out their duties for fear that they may be next,””– Robert Giuffra in a petition filing to the Supreme Court
Another individual on President Trump’s legal team, Acting Solicitor General Hashim Mooppan, also commented on the 2nd Circuit’s decision.
“Once this case was… removed to federal court, the “plain language” of the Westfall Act did not impose any time limit at all, much less a pretrial restriction, on when any recertification must occur,” – Hashim Mooppan in a petition filing to the Supreme Court
While Giuffra and Mooppan raise credible concerns about the implications and rationale for the 2nd Circuit’s decision, Judge Kaplan, who presided over both defamation trials, ruled that the jury findings from the first trial would carry over to the second trial. This ruling would restrict the second jury’s focus to only the damages, which may help explain the decision to award Carroll $83.3 million.
Perhaps another explanation for the elevated damages payment in the second trial was President Trump’s behavior and comments during the trial. Judge Kaplan warned President Trump that he may be removed from court for muttering phrases like “witch hunt” and “con job” loud enough for the jury to hear. One of Carroll’s lawyers, Shawn G. Crowley, commented on President Trump’s behavior in court to hammer home their legal argument that President Trump believed he could get away with anything. Ms. Kaplan, another member of Carroll’s legal team, bears no relation to Judge Kaplan.
“You saw how he has behaved through this trial. You heard him. You saw him stand up and walk out of this courtroom while Ms. Kaplan was speaking. Rules don’t apply to Donald Trump.” – Shawn G. Crowley during the second defamation trial
Despite the legal success for Carroll and her lawyers, President Trump’s legal team will ensure that the $83.3 million damages payment will be delayed for as long as possible by petitioning the Supreme Court. It is unlikely that the Supreme Court will accept this petition, given that it already rejected the first petition from the 2023 defamation case. Additionally, the Supreme Court is currently on its summer recess, with its next scheduled meeting slated for late September. This meeting is colloquially known as the “long conference,” where petitions go to die. While the odds are stacked against a successful petition for President Trump, it would not break precedent for the Supreme Court to ultimately grant the petition.
President Trump’s defamation cases seem to be reaching their final conclusions. The first damages payment being fully paid out to Carroll is a huge win for her and her legal team. Even though the second defamation case was also decided in Carroll’s favor, an unclear path ahead remains for whether President Trump’s petition to the Supreme Court will succeed and what will happen with the second damages payment awarded to Carroll.