E. Jean Carroll Judge Rejects Move To Delay, Brands Trump Appeal 'Frivolous'

Well, it's better than vexatious.

trump eyes

(Photo by Mark Wilson/Getty Images)

Last week Donald Trump got spanked in court.

Nope, not in Atlanta or DC, although that happened, too. This was in New York, where Judge Lewis Kaplan unceremoniously dropkicked Trump’s motion to postpone the second E. Jean Carroll defamation case on the theory that a pending interlocutory appeal raises “important and novel questions concerning the doctrine of presidential immunity, the separation of powers doctrine, and the interplay between the Executive Branch and Judicial Branch.”

The issue is Trump’s claim of “absolute immunity” for any and all statements he made as president, including his defamatory comments about Carroll in 2019. It’s a galaxy brain take, which is perhaps why it took his lawyers upwards of three years to finally come up with it in December of 2022.

Naturally the plaintiff argued that this delay constituted a waiver, but the defense had an answer to that one, too: presidential immunity is unwaivable, and thus can be raised at any time. And no, they will not be taking questions, much less citing to any caselaw in support of this position.

The court has already rejected this argument multiple times, ruling that (1) there is no such thing as absolute presidential immunity; and (2) even it was a thing, Trump waived it long ago. But having filed an interlocutory appeal to the Second Circuit, Trump is now demanding that court stay the case, which is set to go to trial on January 2, 2024.

Unsurprisingly, Judge Kaplan, who previously described Trump’s trial tactics as dilatory and in bad faith, does not agree.


“This case was largely stalled for years due in large part to Mr. Trump’s repeated efforts to delay,” he wrote. “Mr. Trump’s latest motion to stay – his fourth such request – is yet another such attempt to delay unduly the resolution of this matter.”

Finding no substantial likelihood of success at the Second Circuit, Judge Kaplan noted that any harm to Trump from allowing this case to go forward while the appeal is being resolved can be traced to the defendant’s own failure to raise the issue in timely fashion. In contrast, Carroll, who is almost 80 and has been trying to vindicate her claim for almost four years, will face substantial harm from having her claims delayed even further.

Furthermore, Trump’s “bare assertion that the issues raised by his immunity defense are ‘important and novel,’ without demonstrating that there is any merit to those issues, plainly is irrelevant to the question of where the public interest lies.”

Most importantly, Judge Kaplan designated the appeal as frivolous, which is not only embarrassing for Trump’s lawyers Alina Habba and Michael Madaio, but defeats Trump’s claim to have divested the trial court of jurisdiction.

Citing multiple New York federal cases, as well as a 1996 Supreme Court decision, the court writes:


Even where an interlocutory appeal of a denial of an immunity defense otherwise might divest a district court of jurisdiction, “[c]ourts having considered this question have uniformly applied the ‘dual jurisdiction rule’. . . , under which ‘the filing of an appeal under the collateral order doctrine respecting a right not to be tried divests the district court of jurisdiction to proceed with the trial [against the appealing defendant] unless the district court certifies that the appeal is frivolous.

Slow clap.

Carroll v. Trump I [Docket via Court Listener]
Carroll v. Trump II [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.