In Carroll v. Trump, No. 23-1045(L) (2d Cir. Dec. 13, 2023), the Second Circuit holds, in “a vexing question of first impression,” that absolute presidential immunity from suit is not jurisdictional, and – in this case – was waived when the former president failed to allege it as an affirmative defense in his answer.
In Nixon v. Fitzgerald, 457 U.S. 731 (1982), the Supreme Court held that “presidential immunity protected former President Richard Nixon from a lawsuit by an ex-Air Force employee who alleged that Nixon fired him in retaliation for testifying before Congress about cost overruns.”
In this case, plaintiff E. Jean Carroll sued the former president for making defamatory remarks about her in 2019, while he was still in office. Three years into the case, on a motion for summary judgment, the defendant “raised for the first time the argument that presidential immunity barred liability.” The district court denied that motion and a related motion for leave to file an amended answer. The judge held that the defense had not been timely asserted in the answer and that to allow it so late in the proceeding would prejudice the plaintiff.
On an appeal of the absolute immunity issue (under the collateral order doctrine), the Second Circuit affirms “that presidential immunity is waivable and that Defendant waived this defense,” and as well that the district court did not abuse its discretion in denying a belated amendment to the answer. It principally relies on the Supreme Court’s pronouncement in Nevada v. Hicks, 533 U.S. 353 (2001), that “[t]here is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court’s jurisdiction.”
“Rather than acknowledge Hicks . . ., Defendant points to scattered references to ‘jurisdiction’ in Supreme Court cases involving presidential immunity” in Nixon v. Fitzgerald and Clinton v. Jones, 520 U.S. 681 (1997). But the panel concludes that the prior cases had not considered whether presidential immunity goes to the court’s power to adjudicate such a case. In Nixon specifically, the Supreme Court implicitly found jurisdiction and reached the merits.
“All in all, Defendant provides no case that turns on whether presidential immunity is jurisdictional, much less one holding that it is jurisdictional, and Nixon—described by Defendant’s counsel at oral argument as the ‘main case’ and ‘the only binding precedent’ on presidential immunity—points in the opposite direction.”
Nor, the panel holds, does the separation-of-powers doctrine and the presidents “unique constitutional role” dictate that presidential immunity be non-waivable. “A President’s autonomy should be protected; thus, a President should be able to litigate if he chooses to do so. Indeed, at least one President [John F. Kennedy] has declined to invoke presidential immunity, opting instead to settle two civil suits out of court.”
“Finally, Defendant argues that Article III of the Constitution, which vests judicial power in the federal courts, makes presidential immunity nonwaivable. He reasons as follows. First, violations of Article III—for example, the improper exercise of federal judicial power by a non-Article III entity—are not waivable. Next, separation-of-powers considerations inform both Article III and presidential immunity. Thus, presidential immunity is not waivable. But apart from Nixon (discussed above), none of the cases Defendant draws to our attention concern immunity at all, much less presidential immunity.”
“To summarize: notwithstanding scattered references to ‘jurisdiction’ in some presidential immunity cases, the Supreme Court has indicated that immunity defenses are not jurisdictional, and that presidential immunity is to be treated like other forms of immunity that Defendant does not dispute are waivable. Moreover, Nixon—the leading presidential immunity case—treats presidential immunity as nonjurisdictional. Finally, recognizing presidential immunity as waivable reinforces, not undermines, the separation of powers and the President’s decisionmaking authority by affording the President an opportunity to litigate if he so chooses. Accordingly, we hold that presidential immunity is waivable.”
The panel also holds that the defendant raised the defense too late. “Three years passed between Defendant’s answer and his request for leave to amend his answer. A three-year delay is more than enough, under our precedents, to qualify as ‘undue.’ And Defendant’s excuse for not timely raising the defense—that the question of whether the Westfall Act immunized Defendant was pending before the District Court, this Court, and the District of Columbia Court of Appeals between September 2020 and June 2023—is unpersuasive. Defendant does not explain how the Westfall Act dispute precluded him from raising a defense of presidential immunity. Indeed, Defendant first raised presidential immunity in January 2023—that is, during the pendency of the Westfall Act dispute.”
Finally, permitting a belated amendment would prejudice the plaintiff because she was denied an opportunity to take discovery on the whether defendant’s actions fell within his official duties.
Paul Mollica's Federal Courts Blog 