## Facts

- E. Jean Carroll publicly alleged that Donald J. Trump sexually assaulted her in the mid-1990s.
- In June 2019, while serving as President, Trump publicly denied the allegation and made statements asserting, among other things, that he did not know Carroll, she was “not [his] type,” and she fabricated the story for publicity and to sell a book.
- Carroll sued Trump for defamation based on these statements.
- Trump answered the complaint without pleading presidential immunity as an affirmative defense.
- Years later, during summary-judgment briefing, Trump first raised presidential immunity and sought leave to amend his answer to add the defense.
- After Carroll filed an amended complaint adding additional allegedly defamatory statements, Trump attempted to plead presidential immunity in his answer to the amended complaint.

## Issues

1. Whether presidential immunity from civil damages is a waivable affirmative defense or a nonwaivable limitation comparable to subject-matter jurisdiction.
2. If waivable, whether Trump waived presidential immunity by failing to plead it in his original answer and asserting it only years later.
3. Whether the court of appeals had interlocutory jurisdiction to review the district court’s defamation-per-se determination.

## Decision

- The Second Circuit held presidential immunity is a waivable affirmative defense, not a nonwaivable jurisdictional defect.
- The court affirmed the district court’s ruling that Trump waived the defense by not pleading it in his original answer and by raising it only years into the case.
- The court affirmed denial of leave to amend to add presidential immunity and affirmed striking the defense from Trump’s answer to the amended complaint.
- The court dismissed, for lack of appellate jurisdiction, Trump’s interlocutory appeal challenging the district court’s defamation-per-se ruling.
- The case was remanded for further proceedings.

## Legal Principles

- Subject-matter jurisdiction defects are nonwaivable and may be raised at any stage; immunities that operate as defenses to liability generally are not jurisdictional.
- Presidential immunity for acts within the outer perimeter of official responsibilities functions as an immunity from damages liability, not a limit on a federal court’s adjudicative power.
- Under Federal Rule of Civil Procedure 8(c), affirmative defenses must be timely asserted in responsive pleadings; failure to do so can result in waiver.
- A defendant who waives an affirmative defense in the initial answer ordinarily cannot revive it simply because the plaintiff files an amended complaint adding related allegations.
- Merits determinations such as defamation per se are generally not immediately appealable absent an applicable basis for interlocutory review.

## Conclusion

The Second Circuit ruled that presidential immunity is a waivable affirmative defense and that Trump waived it by failing to timely plead it, allowing the defamation action to proceed without that defense while limiting interlocutory review to appealable immunity questions and not the defamation-per-se merits ruling.


Carroll v. Trump, 88 F.4th 418 (2d Cir. 2023)