Carroll v. Trump

23-1045-cv (L) & 23-1146-cv (Con)
Carroll v. Trump




                                    In the
             United States Court of Appeals
                          for the Second Circuit


                                AUGUST TERM 2023

                    Nos. 23-1045-cv (L) & 23-1146-cv (Con)

                                E. JEAN CARROLL,
                      Plaintiff-Counter-Defendant-Appellee,

                                       v.

                   DONALD J. TRUMP, in his personal capacity,
                     Defendant-Counter-Claimant-Appellant.



              On Appeal from the United States District Court
                  for the Southern District of New York



                           ARGUED: OCTOBER 23, 2023
                          DECIDED: DECEMBER 13, 2023



Before: CABRANES, CHIN, and KAHN, Circuit Judges.
      Ordinarily, defendants are deemed to have waived or forfeited
defenses that they did not raise at the outset of the litigation. But
defenses based on subject-matter jurisdiction—the courts’ statutory or
constitutional power to adjudicate the case—are nonwaivable.
Defendants can raise such defenses at any stage in the litigation.

      Presidential immunity is a defense that entitles the President to
absolute immunity from damages liability for acts within the outer
perimeter of his official responsibilities. This case presents a vexing
question of first impression: whether presidential immunity is
waivable. We answer in the affirmative and further hold that Donald
J. Trump (“Defendant”) waived the defense of presidential immunity
by failing to raise it as an affirmative defense in his answer to E. Jean
Carroll’s (“Plaintiff’s”) complaint, which alleged that Defendant
defamed her by claiming that she had fabricated her account of
Defendant sexually assaulting her in the mid-1990s.

      Accordingly, we AFFIRM the July 5, 2023 order of the United
States District Court for the Southern District of New York (Lewis A.
Kaplan, Judge) denying Defendant’s motion for summary judgment
insofar as it rejected Defendant’s presidential immunity defense and
denied his request for leave to amend his answer to add presidential
immunity as a defense. We likewise AFFIRM the District Court’s
August 7, 2023 order insofar as it struck Defendant’s presidential
immunity defense from his answer to Plaintiff’s amended complaint.
We DISMISS for lack of appellate jurisdiction the appeal of the
District Court’s July 5, 2023 order insofar as it determined that
Defendant’s statements about Plaintiff were defamatory per se.



                                   2
Finally, we REMAND the case to the District Court for further
proceedings consistent with this opinion.



                                JOSHUA MATZ (Kate Harris, Roberta A.
                                Kaplan, Trevor W. Morrison, on the brief),
                                Kaplan Hecker & Fink LLP, New York, NY,
                                for Plaintiff-Counter-Defendant-Appellee E.
                                Jean Carroll.

                                MICHAEL T. MADAIO (Alina Habba, on the
                                brief), Habba Madaio & Associates LLP,
                                Bedminster, NJ, for Defendant-Counter-
                                Claimant-Appellant Donald J. Trump.


José A. Cabranes, Circuit Judge:

       Ordinarily, defendants are deemed to have waived or forfeited
defenses that they did not raise at the outset of the litigation. 1 But



       1   See Kaplan v. Bank Saderat PLC, 

 (2d Cir. 2023). “While the
terms ‘waiver’ and ‘forfeiture’ are often used interchangeably because they have
similar effects, they have slightly different meanings.” 

 at 117 n.10. “The term
‘waiver’ is best reserved for a litigant’s intentional relinquishment of a known right.
Where a litigant’s action or inaction is deemed to incur the consequence of loss of a
right, or, as here, a defense, the term ‘forfeiture’ is more appropriate.” Doe v. Trump
Corp., 

, 409 n.6 (2d Cir. 2021) (quotation marks and comma omitted). E.




                                           3
defenses based on subject-matter jurisdiction—“the courts’ statutory
or constitutional power to adjudicate the case” 2—are nonwaivable.
Defendants can raise such defenses “at any stage in the litigation.” 3

       Presidential immunity is a defense that stems from “the
President’s unique office, rooted in the constitutional tradition of the
separation of powers and supported by our history,” and entitles the
President to “absolute . . . immunity from damages liability for acts




Jean Carroll (“Plaintiff”), Donald J. Trump (“Defendant”), and the District Court
refer to Defendant’s failure to raise presidential immunity as “waiver.” For
purposes of this consolidated appeal, whether Defendant forfeited rather than
waived presidential immunity matters not. Thus, “[w]e use the term [‘waiver’] in
this opinion for ease of discussion,” but we express no view on whether Defendant
intended to relinquish his presidential immunity defense, “which is a question of
fact reserved for the district court.” Kaplan, 

 n.10; see, e.g., LCS Grp.,
LLC v. Shire Dev. LLC, No. 20-2319, 

, at *5 n.2 (2d Cir. Apr. 26, 2022)
(summary order) (“Although it may be more accurate to refer to [Appellant] as
having forfeited, rather than waived, many of the arguments it raises here, for
convenience we refer to both their action and inaction here in terms of ‘waiver.’”).

        2   Lightfoot v. Cendant Mortg. Corp., 

 (2017) (quotation marks
omitted).

        3   Arbaugh v. Y&H Corp., 

 (2006); see also Fed. R. Civ. P.
12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).




                                           4
within the outer perimeter of his official responsibilities.” 4 For
example, the Supreme Court held in Nixon v. Fitzgerald 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. 5 Conversely, the Court held in Clinton v. Jones that
presidential immunity did not shield President Clinton from civil
liability for actions allegedly taken when he was Governor of Arkansas
because they were not official presidential acts. 6

       This case presents a vexing question of first impression: whether
presidential immunity is waivable. We answer in the affirmative and
further hold that Donald J. Trump (“Defendant”) waived the defense
of presidential immunity by failing to raise it as an affirmative defense



       4   Nixon v. Fitzgerald, 

 (1982) (quotation marks omitted).
Other Government officials are likewise protected by absolute immunity under
certain circumstances. For example, prosecutorial immunity is a form of absolute
immunity that shields “[a] prosecutor acting in the role of an advocate in
connection with a judicial proceeding . . . for all acts ‘intimately associated with the
judicial phase of the criminal process.’” Simon v. City of New York, 

(2d Cir. 2013) (quoting Imbler v. Pachtman, 

 (1976)). And judges are
entitled to absolute judicial immunity “for acts ‘committed within their judicial
discretion.’” Peoples v. Leon, 

 (2d Cir. 2023) (quoting Cleavinger v.
Saxner, 

 (1985)).

       5   See Nixon, 

.

       6   Clinton v. Jones, 

 (1997).




                                             5
in his answer to E. Jean Carroll’s (“Plaintiff’s”) complaint, which
alleged that Defendant defamed her by claiming that she had
fabricated her account of Defendant sexually assaulting her in the mid-
1990s.

         Accordingly, we AFFIRM the July 5, 2023 order of the United
States District Court for the Southern District of New York (Lewis A.
Kaplan, Judge) denying Defendant’s motion for summary judgment
insofar as it rejected Defendant’s presidential immunity defense and
denied his request for leave to amend his answer to add presidential
immunity as a defense. We likewise AFFIRM the District Court’s
August 7, 2023 order insofar as it struck Defendant’s presidential
immunity defense from his answer to Plaintiff’s amended complaint.
We DISMISS for lack of appellate jurisdiction the appeal of the
District Court’s July 5, 2023 order insofar as it determined that
Defendant’s statements about Plaintiff were defamatory per se.
Finally, we REMAND the case to the District Court for further
proceedings consistent with this opinion.

                          I.   BACKGROUND

         The relevant facts in this appeal are undisputed. We summarize
them below.




                                    6
                                A. Factual Background

        On June 21, 2019, Plaintiff publicly accused Defendant of
sexually assaulting her in the mid-1990s.7 Defendant, who was
President of the United States at the time of the accusations, denied
Plaintiff’s claims in a series of public statements. In the first, released
that same day, he claimed that “it never happened,” he “never met”
Plaintiff, and that “[s]he is trying to sell a new book—that should
indicate her motivation.” 8 The next day, he stated that “[t]his is a
woman who has also accused other men of things . . . It is a totally false
accusation.” 9

        On November 4, 2019, Plaintiff responded by suing Defendant
for defamation in New York State Supreme Court. Defendant filed his



        7   See E. Jean Carroll, Hideous Men: Donald Trump Assaulted Me in a Bergdorf
Goodman Dressing Room 23 Years Ago. But He’s Not Alone on the List of Awful Men in
My Life, THE CUT (June 21, 2019), https://www.thecut.com/2019/06/donald-trump-
assault-e-jean-carroll-other-hideous-men.html [https://perma.cc/HX9T-8MPK].

        8   Appellant’s Appendix (“A”) 573.

        9   Id. at 580. On June 24, 2019, Defendant further stated that “she’s not my
type” and that it “never happened.” Id. at 590. As of November 15, 2023,
Defendant’s June 24 statement is no longer the subject of Plaintiff’s defamation
claim, although Plaintiff contends it remains relevant to the question of punitive
damages. See Def. 28(j) Letter, Carroll v. Trump, No. 23-1045 (Nov. 17, 2023), ECF
No. 121; Pl. Letter, Carroll v. Trump, No. 23-1045 (Nov. 20, 2023), ECF No. 124. We
take judicial notice of this development, see Liberty Mut. Ins. Co. v. Rotches Pork
Packers, Inc., 

 (2d Cir. 1992), but it does not alter our analysis.




                                           7
answer on January 23, 2020. On September 8, 2020, the United States
removed the case to the United States District Court for the Southern
District of New York pursuant to the Westfall Act. 10

                             B. Procedural Background

       On December 22, 2022, Defendant moved for summary
judgment. 11 In his reply brief, filed on January 19, 2023, he raised for
the first time the argument that presidential immunity barred liability.



       10   The Westfall Act immunizes federal employees acting within the scope of
their office or employment from tort liability. See 

(b)(1). Under the
Act, the United States may remove a state court civil case to federal court upon
certification by the Attorney General that the employee was acting within the scope
of his employment at the time of the alleged incident. See 

 § 2679(d)(2); Osborn v.
Haley, 

 (2007). Whether the Westfall Act immunizes Defendant
is not before us today. Cf. Carroll v. Trump, 

 (2d Cir. 2023) (recounting the
procedural history of this case’s Westfall Act dispute and remanding to the District
Court). After we remanded to the District Court, the Government decided not to
issue Defendant a new Westfall Act certification in light of the filing of Plaintiff’s
amended complaint.

       11   One month before Defendant moved for summary judgment, Plaintiff
filed a separate lawsuit against Defendant for sexual assault and defamation. The
defamation claim arose out of an October 2022 statement by Defendant denying
Plaintiff’s assault allegation. See Complaint, Carroll v. Trump, No. 22-cv-10016
(“Carroll II”) (S.D.N.Y. Nov. 24, 2022). In May 2023, the Carroll II jury awarded
Plaintiff $5 million in damages. The verdict is the subject of a separate appeal
currently pending before this Court. See Carroll II, appeal docketed, No. 23-793 (2d
Cir. May 11, 2023).




                                           8
On July 5, 2023, the District Court denied Defendant’s motion for
summary judgment after determining that Defendant waived
presidential immunity and denied Defendant’s request for leave to
amend his answer to add presidential immunity as a defense (“July 5
Order”). 12 The Court denied Defendant’s request for leave to amend
on two independent grounds: first, that the request was futile, and
second, that Defendant unduly delayed in raising the defense and
granting the request would prejudice Plaintiff. 13 The Court also
rejected Defendant’s argument that his statements were not
defamatory per se. 14 Defendant appealed the July 5 Order on July 19,
2023.

        Meanwhile, on May 22, 2023, Plaintiff filed an amended
complaint that added, inter alia, more statements by Defendant
alleging that Plaintiff’s accusations were false and politically
motivated. Defendant filed his answer to Plaintiff’s amended
complaint on June 27, 2023. The amended answer for the first time
raised presidential immunity as an affirmative defense. On August 7,
2023, the District Court struck Defendant’s presidential immunity
defense from his amended answer on the ground that it had been



        12    Memorandum Opinion Denying Defendant’s Motion for Summary
Judgment (Corrected), Carroll v. Trump (“Carroll I”), No. 20-cv-7311, 

 (S.D.N.Y. July 5, 2023) (“July 5 Order”).

        13   Id. at *9-13.

        14   Id. at *13-14.




                                         9
waived and, even if not, “would have been insufficient as a defense”
(“August 7 Order”). 15 On August 10, 2023, Defendant appealed the
August 7 Order.

       Defendant sought a stay from the District Court, arguing that
his appeal of the District Court’s July 5 Order, which rejected
Defendant’s presidential immunity defense, divested the District
Court of jurisdiction. On August 18, 2023, the District Court denied
Defendant’s stay motion upon determining his appeal to be
frivolous. 16 Defendant then sought an emergency stay from our Court,
which a motions panel denied on September 13, 2023. The same day,
the motions panel ordered the consolidation of Defendant’s appeals of
the July 5 Order and the August 7 Order and set an expedited briefing
schedule.

                               II.   DISCUSSION

       This case concerns appeals from two related orders by the
District Court. The July 5 Order denied Defendant’s motion for



       15    Memorandum Opinion Granting Plaintiff’s Motion to Dismiss
Defendant’s Counterclaim and Certain Purported Affirmative Defenses, Carroll I,
No. 20-cv-7311, 

, at *9 (S.D.N.Y. Aug. 7, 2023) (“August 7 Order”).
The August 7 Order also dismissed Defendant’s counterclaim that Plaintiff
defamed him by accusing him of rape. Id. at *5-8. The District Court’s dismissal of
Defendant’s counterclaim is not before us today.

       16   Memorandum Opinion Denying Defendant’s Motion to Stay, Carroll I, No.
20-cv-7311, 

, at *7-8 (S.D.N.Y. Aug. 18, 2023).




                                        10
summary judgment on the ground that Defendant waived his
presidential immunity defense and further denied Defendant’s
request for leave to amend his answer to add presidential immunity
as an affirmative defense. The August 7 Order struck Defendant’s
affirmative defense of presidential immunity from his answer to
Plaintiff’s amended complaint on the ground that Defendant had
already waived this defense.

      We hold that presidential immunity is waivable and that
Defendant waived this defense. 17 Thus, the District Court did not err
in its order denying Defendant’s motion for summary judgment, nor
did it err, much less “abuse its discretion,” in denying his belated
request for leave to amend his answer to add presidential immunity
as a defense. 18 We also hold that the District Court did not err in
striking Defendant’s presidential immunity defense from his answer
to Plaintiff’s amended complaint. 19 Nor did the District Court err in
retaining jurisdiction after Defendant filed his notice of appeal on July
19, 2023. 20 Finally, we hold that we lack appellate jurisdiction to
consider whether Defendant’s statements were defamatory per se. 21



      17   See Section II.A, post.

      18   See Sections II.A-II.B, post.

      19   See Section II.C, post.

      20   See Section II.D, post.

      21   See Section II.E, post.




                                           11
             A. Whether Defendant Waived Presidential Immunity 22

       Is presidential immunity waivable? And if so, did Defendant
waive it? The answer to both questions is yes.

                1. Whether Presidential Immunity Is Waivable

       Defendant argues that presidential immunity is a jurisdictional
defense and is thus nonwaivable. 23 We disagree. The Supreme Court
recognized in Nevada v. Hicks that “[t]here is no authority whatever for
the proposition that absolute- and qualified-immunity defenses




        22   We review the District Court’s determination that Defendant waived his
presidential immunity defense for “abuse of discretion.” See Amara v. Cigna Corp.,

 (2d Cir. 2022). We review the District Court’s denial of summary
judgment and its determination that presidential immunity can be waived de novo.
See Johnson v. Killian, 

 (2d Cir. 2012); Berg v. Kelly, 

(2d Cir. 2018). We have appellate jurisdiction under the collateral order doctrine to
review the District Court’s determination that Defendant is not entitled to absolute
immunity. See Shmueli v. City of New York, 

 (2d Cir. 2005) (“As the
existence of absolute immunity protects an official not only from liability but also
from suit, the validity of the defense should be determined at an early stage. Hence,
an interlocutory order rejecting the defense is immediately appealable under the
collateral order doctrine to the extent that the rejection turned on an issue of law.”).

        23   See Def. Br. at 12-34; see also notes 1-6 , ante (explaining concepts of waiver
and presidential immunity).




                                              12
pertain to the court’s jurisdiction.” 24 And we have repeatedly
distinguished absolute immunity defenses from defenses based on
subject-matter jurisdiction. 25

       Rather than acknowledge Hicks or our precedents, Defendant
points to scattered references to “jurisdiction” in Supreme Court cases
involving presidential immunity. 26 But as we have recently been
reminded by the Supreme Court, “[t]he mere fact that [the Supreme]
Court previously described something without elaboration as




       24   

 (2001); see also Smith v. Scalia, 

, 40 n.10
(D.D.C. 2014) (Jackson, J.) (“[A]bsolute judicial immunity is a non-jurisdictional
bar.”), aff’d, No. 14-cv-5180, 

 (D.C. Cir. 2015). Qualified immunity
shields officials from civil damages liability “insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 

 (1982). Absolute
immunity, by contrast, “confers complete protection from civil suit.” Tulloch v.
Coughlin, 

 (2d Cir. 1995). The parties do not dispute that presidential
immunity is a form of absolute, rather than qualified, immunity.

       25   See, e.g., Chen v. Garland, 

, 252 n.6 (2d Cir. 2022); Mitchell v.
Fishbein, 

 (2d Cir. 2004); see also Beechwood Restorative Care Ctr. v.
Leeds, 

, 154 n.3 (2d Cir. 2006) (holding absolute immunity defense to be
waived because not adequately preserved for appellate review).

       26   See Def. Br. at 15-16, 19, 22, 31 (quoting Mississippi v. Johnson, 

 (1867); Nixon, 

; and Clinton, 

).




                                            13
jurisdictional . . . does not end the inquiry.” 27 We must ask if the prior
decision addressed whether the provision or defense is “‘technically
jurisdictional’—whether it truly operates as a limit on a court’s subject-
matter jurisdiction—and whether anything in the decision ‘turn[ed] on
that characterization.’” 28 Accordingly, “[i]f a decision simply states
that ‘the court is dismissing “for lack of jurisdiction” when some
threshold fact has not been established,’ it is understood as a ‘drive-by
jurisdictional ruling’ that receives no precedential effect.” 29

       None of the cases on which Defendant relies indicate that
presidential immunity is jurisdictional—indeed, quite the opposite.
Defendant relies primarily on the following passage in Nixon:

                 [A] court, before exercising jurisdiction,
                 must balance the constitutional weight of
                 the interest to be served against the dangers
                 of intrusion on the authority and functions
                 of the Executive Branch. When judicial
                 action is needed to serve broad public
                 interests . . . the exercise of jurisdiction has
                 been held warranted. In the case of this


       27   Wilkins v. United States, 

 (2023) (quotation marks
omitted).

       28   

 at 160 (quoting Arbaugh, 

) (some quotation marks
omitted).

       29   

 (quoting Arbaugh, 

) (alteration adopted).




                                           14
                   merely private suit for damages based on a
                   President’s official acts, we hold it is not. 30

But Nixon hurts, not helps, Defendant’s case. The passage quoted
above follows a threshold analysis of whether the Supreme Court had
subject-matter jurisdiction over the dispute. 31 Pursuant to the usual
practice in the federal courts, 32 only once assured of its subject-matter
jurisdiction did the Supreme Court proceed to the “merits”—i.e., to
whether the President was entitled to immunity. 33

        Nor do the passing references to “jurisdiction” in Mississippi v.
Johnson or in Clinton v. Jones support Defendant’s position. In Johnson,
the question was whether a state could obtain an injunction to prevent



        30   Nixon, 

 (citations omitted); see Def. Br. at 19, 22-23, 30-31, 33.

        31   Nixon, 

; see also 

 (“Before addressing the merits
of this case, we must consider two challenges to our jurisdiction.”).

        32   See, e.g., Ashcroft v. Iqbal, 

 (2009) (“We first address
whether the Court of Appeals had subject-matter jurisdiction . . . .”); In re Clinton
Nurseries, Inc., 

, 22 (2d Cir. 2022) (“At the outset, we must consider
whether this Court has subject matter jurisdiction . . . .”); Lanier v. Bats Exch., Inc.,

 (2d Cir. 2016) (“As a threshold matter, we must first satisfy
ourselves that we have subject matter jurisdiction.”); Rogers v. Petroleo Brasileiro,
S.A., 

 (2d Cir. 2012) (“Notwithstanding our grave concerns
regarding the merits of the complaint, we proceed, as we must, first to determine
issues of subject matter jurisdiction.”).

        33   Nixon, 

, 743 n.23.




                                              15
the President from carrying out an Act of Congress, not whether a
President is liable for damages in a private civil suit. 34 And like Nixon,
Clinton first held that the Supreme Court had subject-matter
jurisdiction before proceeding to the immunity question. 35 Neither
Nixon nor Clinton addressed whether presidential immunity is
“technically jurisdictional,” nor did “anything in the decision[s] turn[]
on    that       characterization.” 36       Thus,    Clinton’s   reference   to
“jurisdiction”—the Court’s determination that “[t]he Federal District
Court has jurisdiction to decide this case” 37—is, like Nixon’s, best
characterized as a “drive-by jurisdictional ruling” that “should be
accorded no precedential effect” because it ultimately does not bear on
the question of whether presidential immunity is jurisdictional. 38

      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




      34   See generally Johnson, 

.

      35   See Clinton, 

.

      36   Wilkins, 

 (quotation marks omitted).

      37   Clinton, 

.

      38    Wilkins, 

 (quotation marks omitted and alteration
adopted).




                                           16
argument as the “main case” and “the only binding precedent” on
presidential immunity—points in the opposite direction. 39

       Next, Defendant contends that “the separation-of-powers
doctrine” renders presidential immunity nonwaivable because “an
impermissible inter-branch conflict will always arise when a court
seeks to impute civil liability on a President for the performance of his
official acts.” 40 But separation-of-powers considerations militate in
favor of, not against, recognizing presidential immunity as 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
has declined to invoke presidential immunity, opting instead to settle
two civil suits out of court. 41 Recognizing presidential immunity as a
jurisdictional defense would, the District Court observed, “risk



       39   Oral Arg. Audio Recording at 4:14-22; cf. Blassingame v. Trump, Nos. 22-
5069, 22-7030, 22-7031, 

 (D.C. Cir. Dec. 1, 2023) (affirming district
court’s order denying Defendant’s presidential immunity defense without
analyzing whether the defense is jurisdictional).

       40   Def. Br. at 12-13.

       41   See Answer to Complaint, Bailey v. Kennedy, No. 757,200 (Cal. Super. Ct.
Jan. 19, 1961); Answer to Complaint, Hills v. Kennedy, No. 757,201 (Cal. Super. Ct.
Jan. 19, 1962); see also Clinton, 

 (summarizing the Kennedy litigation).
In addition, lawsuits filed against Presidents Franklin D. Roosevelt and Harry S.
Truman were dismissed without, it appears, either President invoking presidential
immunity. See Jones v. Clinton, 

, 1362 n.10 (8th Cir. 1996), aff’d, 

.




                                          17
encroachment by the judiciary into the president’s domain by
eliminating the president’s ability to choose” whether to litigate. 42

       Moreover, avoiding undue judicial intrusion on the executive
branch undergirds the doctrines of both prosecutorial immunity and
presidential immunity. That said, Defendant does not dispute that
prosecutorial immunity is waivable. Rather, he argues that the
President’s unique constitutional role distinguishes presidential
immunity from other forms of absolute immunity such as
prosecutorial immunity and judicial immunity. 43 But as Defendant
acknowledges, 44 the Supreme Court has made clear that absolute
immunity for prosecutors and judges, on the one hand, and
presidential immunity on the other, are closely related. “As is the case
with prosecutors and judges,” the Court stated in Nixon, “a President
must concern himself with matters likely to ‘arouse the most intense
feelings.’” 45 And the Court has recently reinforced the “careful
analogy” it drew in Nixon, reasoning that “a President, like [judges and
prosecutors], must . . . not be made ‘unduly cautious in the discharge



       42   July 5 Order, Carroll I, 

, at *8.

       43   Def. Br. at 28-30.

       44   Id. at 28-29.

       45   Nixon, 

-52 (quoting Pierson v. Ray, 

 (1967));
see also id. at 758 (“For the President, as for judges and prosecutors, absolute
immunity merely precludes a particular private remedy for alleged misconduct in
order to advance compelling public ends.”).




                                            18
of [his official] duties’ by the prospect of civil liability for official
acts.” 46

         Nor do the Court’s references in Nixon and Harlow v. Fitzgerald—
Nixon’s companion case—to the President’s unique status in
comparison with other Government officials support Defendant’s
position. 47 Those passages contrasted the President to other executive
officials—such as presidential aides and Cabinet officers—to conclude
that, unlike the qualified immunity of these lower-level executive
officials, presidential immunity is absolute. 48 And although the
Supreme Court in Nixon recalled the “special solicitude due to claims
alleging a threatened breach of essential Presidential prerogatives
under the separation of powers,” the passage in question concerned
not whether presidential immunity was waivable, but whether the



         46   Trump v. Vance, 

 (2020) (quoting Nixon, 

n.32).

         47   See Nixon, 

 (“The President’s unique status under the
Constitution distinguishes him from other executive officials.”); Harlow v.
Fitzgerald, 

, 811 n.17 (1982) (“As we explained in [Nixon], the recognition
of absolute immunity for all of a President’s acts in office derives in principal part
from factors unique to his constitutional responsibilities and station. Suits against
other officials—including Presidential aides—generally do not invoke separation-
of-powers considerations to the same extent as suits against the President
himself.”).

         48   Nixon, 

; Harlow, 

 & n.17. For the difference
between qualified immunity and absolute immunity, see note 24, ante.




                                             19
district court’s order rejecting Nixon’s immunity defense was a
“serious and unsettled” question that could be raised on interlocutory
appeal. 49

       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.50 More to the point, it is not accurate to assert that




       49   Nixon, 

 (quotation marks omitted).

       50   See Def. Br. at 23-27 (citing Clapper v. Amnesty Int’l USA, 

(2013); Lujan v. Defs. of Wildlife, 

 (1992); Commodity Futures Trading
Comm’n v. Schor, 

 (1986); Lo Duca v. United States, 

 (2d Cir.
1996); Austin v. Healey, 

 (2d Cir. 1993); Samuels, Kramer & Co. v. Comm’r,

 (2d Cir. 1991); Wellness Int’l Network, Ltd. v. Sharif, 

, 682
(2015); Kuretski v. Comm’r, 

 (D.C. Cir. 2014); Nixon, 

;
Nixon, 

 (Burger, C.J., concurring); Johnson, 

).




                                          20
separation-of-powers             defenses      or     arguments      are    ipso    facto
nonwaivable. 51

        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.




        51   See Wellness Int’l Network, 575 U.S. at 682 n.11 (“The proposition that legal
defenses based upon doctrines central to the courts’ structural independence can
never be waived simply does not accord with our cases.”) (alteration adopted)
(quoting Plaut v. Spendthrift Farm, Inc., 

 (1995)); United States v.
Donziger, 

 (2d Cir. 2022) (“[S]tructural constitutional
claims . . . have no special entitlement to review. A party forfeits the right to
advance on appeal a nonjurisdictional claim, structural or otherwise, that he fails
to raise at trial.”) (quoting Freytag v. Comm’r, 

 (1991) (Scalia, J.,
concurring in part and concurring in judgment)), cert. denied, 

 (2023);
United States v. Nelson, 

 (2d Cir. 2002) (“[W]e do not imply that all
claims of structural error . . . are unwaivable.”).




                                             21
        2. Whether Defendant Waived Presidential Immunity

       Having determined that presidential immunity is waivable, we
reach the question: Did Defendant waive his presidential immunity
defense? We hold that he did.

       Defendant filed his answer to Plaintiff’s original complaint in
New York state court in January 2020. But the answer did not invoke
presidential immunity. The District Court thus determined that
Defendant had waived this defense, a holding Defendant does not
challenge in this appeal. 52 Indeed, Defendant’s counsel conceded at
oral argument that assuming the defense of presidential immunity is
waivable, Defendant had waived that defense. 53

       Accordingly, the District Court did not err in denying
Defendant’s motion for summary judgment on the ground that he had
waived his presidential immunity defense. We turn next to whether
the District Court correctly rejected his attempt to revive it—first in his
request for leave to amend his answer, then in his answer to Plaintiff’s
amended complaint.




       52   See July 5 Order, Carroll I, 

, at *5 n.18 (“It accordingly is
clear that Mr. Trump does not dispute that if absolute presidential immunity can
be waived, he in fact waived it in this case.”). See generally Def. Br.

       53   Oral Arg. Audio Recording at 9:59-10:33, 11:53-12:18.




                                           22
                   B. Defendant’s Request for Leave to Amend

       “We review a district court’s denial of leave to amend for abuse
of discretion, unless the denial was based on an interpretation of law,
such as futility, in which case we review the legal conclusion de novo.” 54
The District Court did not err, much less “abuse its discretion,” 55 when
it denied Defendant’s request for leave to amend his answer to add the
defense of presidential immunity on grounds of undue delay and
prejudice. 56




       54   Empire Merchs., LLC v. Reliable Churchill LLLP, 

 (2d Cir.
2018) (quotation marks omitted).

       55   “‘[A]buse of discretion’ . . . is a nonpejorative term of art” that “implies no
misconduct on the part of the district court.” United States v. Bove, 

, 607
n.1 (2d Cir. 2018). “The term simply describes the circumstance in which a district
court bases its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or renders a decision that cannot be located within the
range of permissible decisions.” 

 (quotation marks omitted and alterations
adopted).

       56   That the amendment would have been futile constituted an independent
basis for the District Court’s decision. See July 5 Order, Carroll I, 

,
at *9-11. Because we affirm the District Court’s determination on grounds of undue
delay and undue prejudice, we do not reach the question whether the proposed
amendment would have been futile.




                                             23
        First, Defendant unduly delayed in raising presidential
immunity as a defense. 57 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.” 58 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. 59 Defendant does not explain how the


        57   Black’s Law Dictionary defines “undue” as “[e]xcessive or unwarranted.”
Undue, BLACK’S LAW DICTIONARY (11th ed. 2019); see also Groff v. DeJoy, 

,
469 (2023) (holding that, in the context of the phrase “undue hardship,” “the
modifier ‘undue’ means . . . ‘excessive’ or ‘unjustifiable’”) (quoting RANDOM
HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1547 (1966)).

        58   See, e.g., McCarthy v. Dun & Bradstreet Corp., 

 (2d Cir. 2007)
(1 year and 9 months); Zahra v. Town of Southold, 

 (2d Cir. 1995) (2
years and 3.5 months); Evans v. Syracuse City Sch. Dist., 

 (2d Cir. 1983)
(2 years and 9 months); AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 

 (2d Cir. 2010) (3 years); see also City of New York v. Grp. Health Inc., 

 (2d Cir. 2011) (3 years and 2 months). To be sure, we have allowed
amendments to pleadings when similar or longer lengths of time have passed. See
Rachman Bag Co. v. Liberty Mut. Ins. Co., 

 (2d Cir. 1995) (“more than
four years”); Richardson Greenshields Sec., Inc. v. Lau, 

, 653 n.6 (2d Cir.
1987) (collecting cases). But those cases did not involve a finding of prejudice to the
non-moving party.

        59   See note 10, ante (describing the Westfall Act); Carroll v. Trump, 

(2d Cir. 2023) (discussing the procedural history of this case’s Westfall Act dispute).




                                              24
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.

       We next conclude that Defendant’s delay unduly prejudiced
Plaintiff. “Prejudice,” like “abuse of discretion,” is a legal term of art. 60
In gauging whether a proposed amendment would prejudice a party,
“we consider, among other factors, whether an amendment would
require the opponent to expend significant additional resources to
conduct discovery and prepare for trial or significantly delay the
resolution of the dispute.” 61 Although “mere delay, absent a showing
of bad faith or undue prejudice, does not provide a basis for a district
court to deny the right to amend,” “the longer the period of an
unexplained delay, the less will be required of the nonmoving party in
terms of a showing of prejudice.” 62 Finally, requests to amend that
come at a late stage of the litigation, after discovery has closed and a




       60   See Prejudice, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining
“prejudice” as “[d]amage or detriment to one’s legal rights or claims”); see also note
55, ante (“defining abuse of discretion”).

       61   Ruotolo v. City of New York, 

 (2d Cir. 2008) (quotation
marks omitted).

       62   Pasternack v. Shrader, 

 (2d Cir. 2017) (quotation marks
omitted and alterations adopted); Block v. First Blood Assocs., 

 (2d
Cir. 1993) (quotation marks omitted).




                                         25
motion for summary judgment has been filed, are more likely to be
prejudicial. 63

       Had Defendant raised presidential immunity before discovery
closed, Plaintiff claims, she would have engaged in discovery on
whether Defendant’s actions fell within his official duties. 64 First,
Plaintiff would have asked Defendant for more detail on the process
through which he issued and prepared the June 2019 statements,
including how the process compared to his pre- and post-presidential
processes. 65 Second, Plaintiff would have sought third-party discovery
from White House personnel allegedly involved in preparing and
issuing the statements. 66 Third, Plaintiff would have sought expert
testimony from former White House officials and requested internal
White House documents from the National Archives regarding former
presidents’ processes for issuing statements denying wrongdoing.67
Plaintiff’s counsel represents that they avoided doing so because “the
risk of prolonging the litigation and creating complex executive
privilege fights did not seem worth it to us, as measured against the




       63   See AEP Energy Servs., 

.

       64   Pl. Br. at 45; Oral Arg. Audio Recording at 26:06-30:02.

       65   Oral Arg. Audio Recording at 26:06-27:44.

       66   Id. at 27:45-28:22.

       67   Id. at 28:23-29:20.




                                           26
absence of an absolute immunity defense, which Mr. Trump had not
raised.” 68

       Against all this, Defendant contends that the discovery Plaintiff
would have pursued regarding presidential immunity (whether the
statements fell within the President’s official duties) was already
explored by Plaintiff in the discovery she pursued regarding the
Westfall Act (whether the statements fell within the President’s scope
of employment). 69 But as counsel for Defendant concedes, the two tests
are different. 70 The Westfall Act’s scope-of-employment test is
subjective, while presidential immunity’s official-duties test is
objective.71 And Defendant has no response to Plaintiff’s contention
that Defendant’s failure to timely raise presidential immunity
informed her decision not to engage in discovery on whether
Defendant’s actions fell within his official duties.

       In sum, three years passed before Defendant raised the defense
of presidential immunity, significant additional resources to conduct




       68   Id. at 28:57-29:04.

       69   Id. at 39:40-40:28.

       70   Id. at 39:50-40:05.

       71   Compare Trump v. Carroll, 

, 234 (D.C. 2023) (Westfall Act
inquiry’s “focus is on the subjective state of mind of the tortfeasor-employee”), with
Nixon, 

 (presidential immunity analysis rejecting “inquiry into the
President’s motives”).




                                         27
discovery would be required were Defendant to amend his answer,
and the request arose at a late stage of litigation—after discovery
closed and Defendant moved for summary judgment. Under these
circumstances, we hold that the District Court did not “abuse its
discretion” in denying Defendant’s request for leave to amend his
answer on grounds of undue delay and prejudice.

      C. Defendant’s Answer to Plaintiff’s Amended Complaint

      After the District Court denied Defendant’s request for leave to
amend his answer, Plaintiff filed an amended complaint. In response,
Defendant filed an answer to the amended complaint asserting
presidential immunity. The District Court struck Defendant’s
presidential immunity defense from his amended answer, reasoning
that “[t]here is nothing new in the amended complaint that would
make Mr. Trump’s presidential immunity defense any more viable or
persuasive now than it would have been before.” 72

      We review a district court decision striking an affirmative
defense de novo. 73 Although “an amended complaint ordinarily
supersedes the original, and renders it of no legal effect,” an amended
complaint “does not automatically revive all of the defenses and
objections that a defendant has waived in response to the original




      72   August 7 Order, Carroll I, 

, at *9.

      73   See Shields v. Citytrust Bancorp, Inc., 

 (2d Cir. 1994).




                                            28
complaint.” 74 Defenses that “involve[] the core issue of a party’s
willingness to submit a dispute to judicial resolution,” such as lack of
personal jurisdiction, improper venue, insufficiency of process,
insufficiency of service, or the existence of an arbitration agreement,
are “not automatically revived by the submission of an amended
complaint” if initially waived. 75 To revive such claims, a party “must
show that the amended complaint contains charges that, in fairness,
should nullify its earlier waiver and allow it to reassess its strategy.” 76

       Presidential immunity involves the party’s willingness to
submit the dispute to judicial resolution and is distinguishable from
revivable, merits-based defenses. 77 Indeed, the only reason we have
jurisdiction over this appeal is that the denial of presidential immunity
is a collateral order, a requirement of which is that the issue on appeal
be “completely separate from the merits of the action.” 78 What’s more,


       74   

 (quotation marks omitted).

       75   Gilmore v. Shearson/Am. Exp. Inc., 

 (2d Cir. 1987), abrogated
in part on other grounds by Gulfstream Aerospace Corp. v. Mayacamas Corp., 

 (1988).

       76   Id. at 113.

       77   See, e.g., Shields, 

 (failure to plead fraud with particularity
is a revivable defense).

       78   Will v. Hallock, 

 (2006) (quotation marks omitted).
Defendant suggests that the only non-revivable defenses are those listed in Federal




                                             29
Defendant does not identify any changes to the complaint “that, in
fairness, should nullify [his] earlier waiver and allow [him] to reassess
[his] strategy.” 79 Accordingly, in the unusual circumstances presented
here, we hold that the District Court did not err in striking presidential
immunity as an affirmative defense from Defendant’s answer to
Plaintiff’s amended complaint.

        D. Whether the District Court Retained Jurisdiction After
                                   Defendant Appealed

       “The filing of a notice of appeal ordinarily divests the district
court of jurisdiction over issues decided in the order being
appealed.” 80 We have previously noted that “[t]he divestiture of
jurisdiction rule is, however, not a per se rule. It is a judicially crafted
rule rooted in the interest of judicial economy, designed to avoid
confusion or waste of time resulting from having the same issues
before two courts at the same time. Hence, its application is guided by




Rule of Civil Procedure 12(b)(2)-(5). Def. Br. at 42; Reply Br. at 27-29. Defendant is
mistaken. A motion to compel arbitration, for instance, is non-revivable, even
though it is not listed as a defense in Rule 12. See Gilmore, 

.

       79   Gilmore, 

.

       80   Mead v. Reliastar Life Ins. Co., 

 (2d Cir. 2014) (alteration
adopted) (quoting Webb v. GAF Corp., 

 (2d Cir. 1996)).




                                            30
concerns of efficiency and is not automatic.” 81 For example, district
courts may retain jurisdiction notwithstanding appeal if the appeal is
frivolous. 82

        The District Court determined that it retained jurisdiction
because Defendant’s appeal was frivolous. We need not decide
whether Defendant’s appeal is frivolous, for we conclude that under
the singular circumstances presented here, considerations of judicial
economy and efficiency favor the District Court’s retention of
jurisdiction. To hold otherwise would require the District Court on
remand to possibly undertake the rather pointless exercise of re-
adopting the orders it has issued since July 19, 2023, the date
Defendant appealed the July 7 Order. 83 “[O]ur application of the



        81   United States v. Rodgers, 

 (2d Cir. 1996) (quotation marks
and citations omitted).

        82   See, e.g., United States v. Salerno, 

 (2d Cir. 1989); see also
Arthur Andersen LLP v. Carlisle, 

 (2009) (“Appellate courts
can . . . authorize the district court’s retention of jurisdiction when an appeal is
certified as frivolous.”).

        83   See United States v. Rodríguez-Rosado, 

 (1st Cir. 2018) (“We
think applying the bench-made divestiture rule today would surely short-circuit its
aim of judicial efficiency . . . . [W]ith jurisdiction back in its hands, the district court,
undoubtedly, would again deny [defendant’s] motion, like every other time it has
confronted—and denied—the motion. And then, chances are that [defendant]
would once more appeal his case to us. Which would present to us [another]




                                               31
divestiture rule must be faithful to the principle of judicial economy
from which it springs,” 84 and “it should not be employed to defeat its
purposes or to induce endless paper shuffling.” 85 This Court has
declined to apply the divestiture rule under similar circumstances in
the past, and we reach the same result here. 86

    E. Whether We May Consider Whether Defendant’s Statements
                                  Were Defamatory Per Se

       Apart from appeals taken under the collateral order doctrine, 87
orders denying summary judgment are, in general, not immediately




variation on the original theme of this case, like an encore, featuring the very same
parties, the very same motion, the very same denial order, and the very same
arguments on the merits. That seems to us too much to ask of a rule fashioned to
ferret imprudence out of the courts.”); see also United States v. Hickey, 

 (9th Cir. 2009) (“[B]ecause [defendant’s] interlocutory appeal was ultimately a
losing one, any claimed error in proceeding with limited pretrial matters was
harmless and no useful purpose would be served by requiring that court to
redecide the pre-trial motions.” (quotation marks omitted)).

       84   Rodgers, 

.

       85   20 MOORE’S FEDERAL PRACTICE - CIVIL § 303.32 (3d ed. 2023).

       86   See Rodgers, 

 (collecting cases).

       87   See note 22, ante (explaining that we have appellate jurisdiction under the
collateral order doctrine to review the District Court’s determination that
Defendant is not entitled to absolute immunity).




                                            32
appealable. 88        And         collateral-order   doctrine        appeals—such   as
Defendant’s appeals of the July 5 Order and the August 7 Order—do
not render other aspects of the case immediately reviewable unless
they are “inextricably intertwined” or “necessary to ensure
meaningful review” of the collateral orders. 89

        Defendant argues that none of his statements about Plaintiff
were defamatory per se under New York law because they did not
tend to cause injury to her trade, business, or profession, and that the
District Court applied the wrong legal standard to his statements. 90

        Far from being inextricably intertwined with or necessary to
ensure meaningful review of the District Court’s denial of presidential
immunity, whether Defendant’s statements fell within the outer
perimeter of his official presidential duties has nothing to do with
whether the statements qualify as defamatory per se. Because we have
no appellate jurisdiction over the District Court’s determination that
Defendant’s statements were defamatory per se, we do not consider
Defendant’s argument that the District Court erred in this respect.




        88   See Tarpon Bay Partners LLC v. Zerez Holdings Corp., 

 (2d
Cir. 2023).

        89   Bolmer v. Oliveira, 

 (2d Cir. 2010).

        90   Def. Br. at 56-61.




                                              33
                     III.   CONCLUSION

   To summarize, we hold that:

(1) Presidential immunity is a waivable defense.

(2) Defendant waived the defense of presidential immunity by
   failing to raise it as an affirmative defense in his answer.

(3) The District Court did not err in denying Defendant’s motion
   for summary judgment insofar as it rejected Defendant’s
   presidential immunity defense on the ground that he had
   waived this defense.

(4) Defendant unduly delayed in raising presidential immunity as
   a defense, and permitting Defendant to amend his answer to
   add the defense would unduly prejudice Plaintiff. Thus, the
   District Court did not err, much less “abuse its discretion,” in
   denying Defendant’s request for leave to amend his answer to
   add presidential immunity as a defense.

(5) Presidential immunity is not a defense that is automatically
   revived by the submission of an amended complaint if initially
   waived. Thus, the District Court did not err in striking
   Defendant’s presidential immunity defense from his answer to
   Plaintiff’s amended complaint.

(6) Under    the    singular    circumstances      presented      here,
   considerations of judicial economy and efficiency favor the
   District Court’s retention of jurisdiction after Defendant's notice




                                34
      of appeal was filed on July 19, 2023. Thus, the District Court did
      not err in retaining jurisdiction after July 19, 2023.

   (7) Whether    Defendant’s     statements    about    Plaintiff   were
      defamatory per se is neither inextricably intertwined with nor
      necessary to ensure meaningful review of the District Court’s
      denial of presidential immunity. Thus, we lack appellate
      jurisdiction to consider whether Defendant’s statements about
      Plaintiff were defamatory per se.

      Accordingly, we AFFIRM the July 5, 2023 order of the District
Court denying Defendant’s motion for summary judgment insofar as
it rejected Defendant’s presidential immunity defense and denied his
request for leave to amend his answer to add presidential immunity
as a defense. We likewise AFFIRM the District Court’s August 7, 2023
order insofar as it struck Defendant’s presidential immunity defense
from his answer to Plaintiff’s amended complaint. We DISMISS for
lack of appellate jurisdiction the appeal of the District Court’s July 5,
2023 order insofar as it determined that Defendant’s statements about
Plaintiff were defamatory per se. Finally, we REMAND the case to the
District Court for further proceedings consistent with this opinion.




                                   35