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Appeals court questions why the argument of "presidential immunity" wasn't raised years ago in Trump case

Former President Donald Trump's attorney argued that a lower court judge was wrong to reject a claim of immunity after it was raised three years after writer E. Jean Carroll first sued Trump for defamation.

The Federal Appeals Court wants to know why former President Donald Trump's attorneys didn't attempt to use a claim of absolute presidential immunity to shield him from a defamation lawsuit brought by a woman who accused him of sexual assault years ago.

A panel of three judges from the 2nd U.S. Circuit Court of Appeals in Manhattan on Monday heard arguments from Trump's attorney, who claimed that the lower court judge was wrong to reject the defense after it was raised three years after writer E. Jean Carroll first sued Trump. Carroll's lawsuit is aimed at holding Trump accountable for comments he made while president in 2019 after she publicly alleged in a memoir that Trump raped her in a dressing room at a Manhattan luxury department store in 1996. Trump has vehemently denied ever meeting Carroll or assaulting her.

The court did not immediately rule.

Judges Maria Araujo Kahn and Denny Chin questioned Trump attorney Michael Madio about why Trump's attorneys waited until last December to assert that Trump was entitled to immunity for his 2019 statements on the ground of presidential immunity. In an August written ruling, U.S. District Judge Lewis A. Kaplan rejected absolute presidential immunity not just because Trump's attorneys waited so long to make the assertion but also because it would be inappropriate even if it had been made in a timely manner.

"While there is a national interest in protecting the President of the United States from the costs of litigation and potential liability, there is also a national interest in making sure that even a President is held accountable in court for wrongful conduct that has nothing to do with his official duties," Kaplan wrote.

Chin asked Madio later in the discussion about the three-year delay in raising the claim: "If that's so, then why can't Judge Kaplan say it's too late?"

Madio responded that it wouldn't affect Carroll's demand that the defense be asserted now. He also insisted that absolute presidential immunity is a defense that neither Trump nor any other president can waive.

The appeals court took up the question on an expedited basis after Kaplan scheduled a trial for January on the damage claims in a lawsuit filed in November 2019.

In the spring, Manhattan federal jurors found that Trump had subjected Carroll to sexual assault but tossed her defamation claim, which was filed in November 2019 after New York state courts had temporarily changed the law to permit people to sue over sexual assault even decades later.

The ruling left the defamation case pending. Kaplan ruled that the earlier jury findings were applicable to the 2019 case since Trump's comments in both lawsuits were essentially the same. He said a January trial will determine the amount of damages Carroll is owed. She is demanding more than $10 million.