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(Photo by Win McNamee/Getty Images)
Donald Trump has so many legal problems they’re starting to bleed into each other. Just yesterday, we learned that Manhattan District Attorney Alvin Bragg, who in April indicted the former president for falsifying business records to hide the 2016 hush payment to Stormy Daniels, has subpoenaed deposition testimony from the E. Jean Carroll defamation lawsuits.
To wit, Assistant District Attorney Susan Hoffinger addressed a letter to US District Judge Lewis Kaplan requesting clarification regarding the May 15, 2023 subpoena for the videotaped deposition of Trump on October 19, 2022. Portions of this deposition were showed during the first Carroll trial and they were … memorable.
Trump moved to quash the subpoena in New York Supreme Court, calling it an overbroad, improper fishing expedition in search of impeachment materials as well as a violation of protective orders in the federal cases.
Justice Juan M. Merchan agreed with the state’s argument that “certain publicly released excerpts of the deposition demonstrates that Defendant’s testimony included reference to a relevant Access Hollywood tape and address ‘the way in which defendant dealt with allegations of a sexual nature by women in the months leading up to the 2016 presidential election.” But, mindful of the protective orders in Carroll II, which concluded with a $5 million jury verdict in May, and Carroll I, which will go to trial in January, Justice Merchan’s instructed the parties to seek permission from Judge Kaplan to enforce the subpoena.
Judge Kaplan has ordered the parties to file any objection to the order by Tuesday of next week. And in the meanwhile, Trump moved yet again to stay Carroll I, despite prior admonitions from the court for his dilatory filings.
The case was originally filed in state court in 2019, and has dragged on for almost four years, even as the verdict in Carroll II, which included a sexual abuse claim and a repetition of the defamatory statement in 2022, is already before the Second Circuit on appeal. This case isn’t even scheduled to go to the jury in 2023. Nevertheless, Trump demands that it be taken off the docket while he appeals the denial of his motion for summary judgment based on the doctrine of absolute presidential immunity.
Aside from the fact that absolute presidential immunity is not a thing, the problem for Trump is that he failed to bring it up in his answer to the original complaint, waiving his right to do so later. This left his counsel in the position of arguing that this immunity is “a non-waivable issue of subject matter jurisdiction by way of the separation of powers doctrine.”
“Failure to assert an affirmative defense, including absolute immunity, in an answer or other responsive pleading results in waiver of that defense,” Judge Kaplan wrote in his denial of Trump’s motion for summary judgment. “Moreover, as the Supreme Court has stated, ‘[t]here is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court’s jurisdiction.’”
Trump hopes to take the case off the docket while he tries that argument with the Second Circuit. And to keep the deposition video away from New York state prosecutors. And most of all, he hopes that Special Counsel Jack Smith was just kidding when he promised that an indictment in the January 6 case was imminent.
Dream big, kid!
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.
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