Critics of Donald Trump have often claimed that what matters most to him is money – his money, how to keep it, how to get more of it. For seven years, he has tried to avoid paying for what a New York woman has said he did to her.
He will need the Supreme Court to help him. Will it? Twice last summer, the Court refused to hear one version of the years-long legal feud between Trump and E. Jean Carroll, a magazine writer and New York City celebrity; she has sued him twice, and won twice.
The Court turned aside Trump’s first appeal without explanation in orders in June and August. That meant that he had to pay Ms. Carroll $5 million to fulfill a jury verdict for sexual assault and defamation (he also had to pay added interest of $625,005). That case is over.
But awaiting the Court’s attention soon is another version of their dispute. Trump, with explicit support from the Justice Department, is now attempting to escalate the dispute with Ms. Carroll into a historic constitutional conflict.
This time, what is at stake is a separate court verdict awarding her $83.3 million — $18.3 million to compensate for harms to her reputation and threats to her personal safety, plus $65 million to punish Trump for repeated defamation. (With interest still building up, the potential payment could be close to $90 million – an unprecedented award against an American President.)
That case moved ahead on the Court’s calendar late Friday night, when Ms. Carroll’s legal team took their turn, filing a written brief in reply to the two appeals: Trump v. Carroll (the President’s on his own behalf) and United States v. Carroll (the Justice Department on behalf of the federal government).
At this point, the first issue that the Court must consider is whether to review the new appeals, or deny them as it did with the first Carroll verdict that reached it. It could make that choice in the next month or two.
One problem in trying to assess the chances the Court will get involved is that there is a lingering mystery about why the Justices chose not to review the first Carroll case. That case involved no profound legal questions and no constitutional issues at all (it was mainly about using evidence at the trial about Trump’s past mistreatment of other women). Still, the Court appeared to have real difficulty dealing with it.
The case had been laid before the Justices by Court staff 16 times, then repeatedly postponed. When something like that happens, it usually means that one or more of the Justices are keenly interested. But such sustained exposure seldom results in a simple, unexplained denial of review, as finally happened.
The Justices, of course, had constitutional issues in mind in those months, with fresh memories of dealing repeatedly with presidential powers involving Trump and his Administration, and might have seen something along those lines looming as they studied the Carroll controversy. Trump even tried, belatedly, to salvage that first case by suggesting that it should be reviewed along with the case about to reach the Court on the second Carroll verdict, but the Court rejected this attempt and denied review anyway.
Since Trump is focused on significant constitutional questions in the new appeal on the huge Carroll verdict, does that enhance the prospect that the Court will step in? That’s a question Ms. Carroll’s legal team answered in their late-night filing Friday.
The brief argued that, at multiple points of the unfolding dispute in court with Ms. Carroll, Trump had the chance to raise those constitutional objections, including his sweeping claim in the new appeal of presidential immunity to Ms Carroll’s defamation claims. (Trump is seeking a wide expansion of the concept of legal immunity for Presidents, going beyond what the Court created two years ago in the case of Trump v. United States. That decision did not involve Ms. Carroll; it grew out of the criminal investigation of Trump for his challenge to his election defeat in 2020.)
Carroll’s team refers to a Trump letter to a federal court in July six years ago (when he was in his first term in the White House), saying explicitly that Ms. Carroll was “free to pursue this matter when the President is no longer in office” and that he was not “seeking to escape accountability.”
The brief added: “Over the ensuing years, petitioner [Trump] repeatedly affirmed his waiver of immunity by actively litigating the case. Even when he eventually raised presidential immunity – three years into this litigation – he did not raise the question the petition presents that there is some heightened standard for waiving presidential immunity.”
That argument was responding to these two constitutional questions Trump is now raising:
First: If a President, while in office, issues a public statement that denies a claim of personal wrongdoing – here, Ms. Carroll’s claims – is such a denial a part of official presidential duty and thus entitled to constitutional immunity to a challenge in court?
Second: Did Trump forfeit his immunity plea by failing in lower courts to make it properly and at the right time, or is immunity so important to the constitutional role of the President that it can only be forfeited by a very explicit, direct action by a President (which did not occur)?
Both of those questions relate to court procedures and deadlines, but have potential constitutional significance of how they might be treated as constitutional issues. (Trump is not attempting to argue that he had a protected right to engage in mistreatment of Ms. Carroll, and that has been settled by jury verdicts. He wants immunity for how he denounced and criticized her in reaction to her accusations, contending that such a response by a President were defenses of his character as the nation’s leader and thus should have legal immunity.
The Justice Department’s separate appeal takes a different approach than Trump’s on constitutional immunity. The Department does not oppose his immunity claims, but it suggests that, if the Court wants to steer clear of new constitutional questions, there is an alternative way. (The Court has a long tradition of refusing to rule on a constitutional issue existing in a case if there is a non-constitutional way to decide it.)
Under a 1988 federal law (known as “the Westfall Act”), federal government employees are given protection against being sued, when the case against them challenges action they took in the line of their official duties. The Westfall Act allows the federal government to step into a case against a federal employee, taking the place of the individual sued when a line-of-duty action is challenged. Once it stands in, the government can ask the court to dismiss the case. In Ms. Carroll’s case, the government would be free to point out that a claim of defamation cannot, under existing law, be filed against the federal government. That would scuttle Ms. Carroll’s case and erase the near-$90 million verdict.
The Carroll legal team, though, has an extensive reply to the Westfall Act alternative. It notes that the Act itself spells out, in very specific terms, when and how the federal government can move in to take over a case, and none of those requirements were met in the Carroll case. The most important requirement, the brief contended, is that the government must move in before a case goes to trial, which did not happen. Immunity is meant to forestall any trial, so has to be claimed before trial ever starts, according to Ms. Carroll’s team.
Trump’s lawyers, the Carroll brief contends, do not cite “a single case since the passage of the Westfall Act where either the government or any federal employee – let alone a President – has sought” government takeover after a trial verdict is in. Carroll’s team sums up by arguing that the Court “should not bail out this President from the consequences of his repeated litigation choices….This Court should decline to drag this litigation out any further.”
The Court, as with almost all types of cases that reach it, has wide discretion to take on a case, or to simply bypass it and it can turn aside a case without any duty to explain why.
