Court will decide if Trump has presidential immunity against E. Jean Carroll's 2019 damage claims

A three-judge panel will consider whether former President Donald Trump can claim presidential immunity against damages sought by the writer E. Jean Carroll for remarks he made about her in 2019.

Carroll, a former Elle magazine columnist, sued Trump in November 2019 over comments he made shortly after Carroll publicly accused him of raping her in a Manhattan department store dressing room in the 1990s. In statements Trump made denying the accusation, Trump said Carroll was "not my type" and suggested she fabricated her accusation for ulterior and improper purposes, including to increase sales of her then-forthcoming book.

In a hearing Monday, the three-judge panel from the First U.S. Circuit Court of Appeals asked Trump's attorneys why Trump did not raise a presidential immunity defense earlier in the case.

"Why not?" Judge Maria Kahn asked during oral argument.

An attorney for Trump, Michael Madaio, argued the judiciary cannot foreclose the possibility the former president would want to defend himself by invoking an immunity defense. Otherwise, Madaio said, "separation of powers would be weakened."

An attorney for Carroll, Joshua Matz, called that argument "hokum" and pointed out how Trump had ample time to raise presidential immunity but instead invoked other defenses.

"A party who believes they are hanging onto immunity does not behave the way it behaved," Matz said.

At one point the hearing turned to the topic of the limits on presidential speech when Judge Jose Cabranes asked whether the court needed to draw a line between Trump's denial of Carroll's rape claim and his allegedly defamatory attacks on her character.

Carroll's attorney referenced Trump's actions on Jan. 6, 2021, as an example of the consequences of a president who is "free to say anything he wants in public"

The panel, which did not immediately issue a ruling, said it would take the matter under advisement.

Trump appealed to the First Circuit after a district court judge did not allow him to pursue an immunity defense, in part because it took three years for him to raise it.

The case is currently scheduled to go to trial in January.

The judge in the case has already determined that Trump's statements were defamatory, so the trial will only determine damages. Carroll is seeking $10 million.

Carroll prevailed in a second lawsuit last May that alleged defamation and battery, and she was awarded $5 million in damages. Trump is also appealing that case.