For almost seven years, Donald Trump has been repeatedly losing a deeply complex court battle with a New York woman who claims he sexually assaulted her years ago. She has won two verdicts totaling more than $90 million, rising daily as interest is added because nothing has been paid yet.
Now, with his private lawyers and with Justice Department lawyers joining in support, President Trump will attempt to persuade the Supreme Court to erase altogether the verdicts won by magazine writer E. Jean Carroll. The legal cases began when Trump was in his first term in the White House, continued after he left office, and are moving along as his second term unfolds.
Trump gained sweeping legal immunity from the Supreme Court in 2024 as a former President, shielding him from criminal prosecution and putting an end to a variety of charges in federal and state courts; one of those criminal cases, resulting in 34 guilty verdicts, is still in progress in a lower federal court.
The Jean Carroll cases are civil lawsuits, and Trump plans to seek a broad new round of legal immunity against her claims. (The basic constitutional theory for immunizing a President from legal challenge was described this way by the Supreme Court in 1982: “Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.”)
Jean Carroll’s lawsuits claimed sexual assault by Trump in a department store dressing room in 1996. She also alleged that Trump repeatedly defamed her by denouncing her publicly about her legal claims.
Trump already has one appeal unfolding in the Supreme Court, challenging the $83.3 million verdict that Carroll won in one of her cases. Apparently, the Supreme Court is having some difficulty with that case. It has been pending at the Court since November. The Justices have had the case before them for private discussion nine times but there has been no action so far. The Court has not even decided whether it will review that case or simply turn it aside.
Trump’s second appeal, which will challenge a separate $5 million verdict, is due soon and it is likely to be even more complex even though the amount of the verdict at issue is much lower. The Justice Department is expected to support Trump’s appeal or file its own; it has been taking part in the dispute in the lower courts.
The appeal now before the Supreme Court involves Trump’s arguments that the Carroll trials were basically unfair and violated federal court rules because the judge allowed her lawyers to put before the jury “highly inflammatory” evidence to try to show that Trump had a history of sexually assaulting women.
That evidence included the famous “Access Hollywood” videotape in which Trump was shown telling a companion about grabbing women between their legs. It also included the testimony of two other women who had accused Trump of sexual assault.
The Trump lawyers contend further that Carroll, as a writer, regularly penned “fabulist” stories and that she actually made up the story about being assaulted in a department store dressing room, borrowing the plot from a 2012 broadcast of the popular crime show, Law & Order: SUV.
That TV episode, the appeal said, told a story of a rape that had occurred in the Bergdorf Goodman store dressing room – the same site claimed in Carroll’s account of an assault by Trump.
Trump’s next appeal to the Supreme Court, and the planned appeal by the Justice Department, will involve two broad legal claims.
The presidential immunity claim
First: Trump will assert that, because he was serving as President in 2019 and used White House staff and facilities to make the statements that Carroll claimed defamed her, that episode occurred as part of his official duties. That, he will contend, justifies legal immunity under the Supreme Court’s historic 2024 ruling in the criminal case of Trump v. United States.
As part of that argument, Trump plans to challenge lower courts’ rulings that he had forfeited the immunity defense by failing to raise it when he had a chance to do so while the first Carroll trial was in progress. While Trump had left office by the time he made the second statements that Carroll challenged, the lower courts then ruled that the immunity question had been settled against him in the first trial so it could not be brought up during the second trial.
Because presidential immunity is derived from the Constitution, the Trump lawyers will claim, it cannot be forfeited and cannot be taken away even if it had once been rejected at an earlier stage of a court case.
“Westfall Act” claim
Second: Both Trump, on his own, and the Justice Department representing the federal government’s view, plan to argue that a 1988 federal law (popularly known as the Westfall Act) insulates federal government employees (including Presidents) from lawsuits for harms that they cause to others when performing the duties of their government posts. (Congress had quickly passed the Act to overturn a Supreme Court decision earlier in 1988 [Westfall v. Erwin], which had exposed tens of thousands of federal workers to potential claims for official action.)
The Westfall Act does not confer legal immunity from lawsuits; rather, it creates a legal defense that can be put forth against such claims. The Act permits the Justice Department to enter such a lawsuit and to declare officially that the challenged action had, in fact, occurred while official duties were being performed.
That converts the case into a claim against the federal government itself, so the Justice Department takes over the defense against the claim. The federal government, of course, is a more formidable opponent in a court case.
In this instance, the Justice Department within the Trump Administration would be able to seek to dismiss Carroll’s claims as having no legal merit (the same argument that Trump is already making in the first appeal) or are barred by presidential immunity.
In Carroll’s case, the Westfall Act issue took four years for lower courts to sort out, ultimately resulting in the conclusion that the Justice Department could not be substituted for Trump in that proceeding.
Lower federal courts are split on the question of how to enforce the Westfall Act when it becomes an issue in federal court in a lawsuit that begins (as Carroll’s first one did) in a state court. That first case was shifted from a New York state court to federal court because it involved significant legal issues under federal law.
When lower courts are split on such an issue, the Supreme Court often grants review to resolve the conflict.
If the Court follows its regular procedures in processing the new appeals, those would not be likely to be decided by the Justices in the current term, which will run through June or early July.
However, Trump and the Justice Department could ask the Supreme Court to put the new appeals on hold, on the argument that Trump should not have to pay any of the verdicts until all issues are finally settled. It would be a hardship for Trump, his lawyers have contended, to have to start making payments while the controversy is still unfolding.
