American court hearing recordings and interviews - Carroll v Trump, 10/23/2023 argument to US Court of Appeals for the 2nd Circuit, 23 1045, 23 1146

Episode Date: October 24, 2023

Appeals panel questions why 'presidential immunity' argument wasn't pursued years ago in Trump case Story by By LARRY NEUMEISTER, Associated Press 10-23-2023 NEW YORK (AP) — A federal appeals panel wants to know why lawyers for former President Donald Trump didn’t try years ago to use a claim of absolute presidential immunity to shield him from a defamation lawsuit by a woman who accused him of sexual assault. A three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan listened Monday as a lawyer for Trump argued that a lower-court judge was wrong to reject the defense after it was raised three years after columnist E. Jean Carroll first sued Trump.... continued: https://www.msn.com/en-us/news/us/appeals-panel-questions-why-presidential-immunity-argument-wasnt-pursued-years-ago-in-trump-case/ar-AA1iIQvd

That would be the matter of Carol v. Trump. Counsel, whenever you're ready. My name is Montheo, and I represent the President Donald President Tompidge Trump. Today, this court deals with an issue of paramount importance. This court does not overturn the lower court's fooling. A president for the first time in our nation's history will be held simply liable for his official office.

This would violate fundamental separation of powers principles in up in decades, Supreme Court precedent. To avoid this outcome, the score must affirm that presidential unity is an absolutely non-wateful protection that serves to maintain the proper balance between the judicial and executive branches. We must also affirm that President Trump was acting with an outer perimeter of his official duties when he addressed the press and the nation with his public response to his federal delegations. Our first argument is that presidential meeting cannot be waived because it's an essential presidential

a product that's equally limited in the constitutional separation of powers. Counsel, how are the protections afforded by presidential immunity reduced by a finding that it is an waivable defense? So you're saying that the protections of presidential immunity need to be protected. My question is, how are the protections afforded by? that by presidential immunity, how are they reduced if this court were to find

it is a waivable defense? The separation of powers would be vegan if we were to allow the judiciary to judge and I think is very well established through a line of cases being able to why shouldn't the president be able

to waive the defense if he or she wished to? I mean there may be some strategic reasons not to assert it. Well, I think, again, it goes back to the checking down, the separation between the three separate branches.

Well, should a president be able to waive it, to waive the immunity if he wanted to? No, because it's a jurisdictional issue when the president's not able to. I mean, this goes back to the opening phrase act in the

short, but they said that the political branches cannot choose to waive the separation of power they can't opt into an interference conflict. That's the whole purpose of the separation of arrows, make sure that they stay separate and they don't intrude upon one of it. And allowing one.

Well, isn't it, didn't the Supreme Court compare it to prosecutorial and judicial immunity and aren't those immunities waivable? The Supreme Court did compare them in several, in one aspect, but the primary justification for presidential immunity of the Supreme Court me in particular process of the separation of power doctrine which is not comparable to judges and prosecutors. The reason they compare to judges and prosecutors is

that's a common law of a policy immunity that's based on that when I'm able to do their job freely but there is no separation of powers consideration we're talking about judges and prosecutors so I think and again this being mixed in this report said that the most compelling justification for presidential immunity is the separation of power of doctrine so I think that's a most fair consideration of the common law insiderations for those the prosecutors. Has any case held that

presidential immunity is jurisdictional? Well, there are many cases that have treated as a matter of subject kind of jurisdiction and dismissed it under 12B1. There are also cases that have dismissed it at 12026 as a

American case defense. So at this point it's really been unsettled how courts have dealt with it. But again, the main the main case that has dealt with this really the only finding press in here is Nixon v. Gerald, where they specifically say that it's a jurisdictional question, that when President's union applies, the courts don't have jurisdiction here. So the lower courts have dealt with a number of different ways.

Counsel, if it is jurisdictional, then in this case, your client filed a counterclaim of defamation against the plaintiff. If it is jurisdictional, should the trial court have thrown out your client's counterfeiting? claim for lack of jurisdiction? Well, the county claim was fairly recent. It would be several months ago. So I think that would be separate apart from the Congress. So whether or not the court has jurisdiction is decided temporarily on the date?

Well, I think it's a different question whether the court has jurisdiction over conduct that would have been an official presidential conduct as opposed to a counterclaim that released to conduct that is in no way presidential really gives us no jurisdiction. But doesn't that raise the issue that if we agree that presidential immunity is a non-waivable jurisdictional defect, as you're asking us to do, that if a president is sued and wants to litigate or bring cross claims as your client did in this case, then the court would have to dismiss those actions for lack of jurisdiction,

even if the president wanted to litigate that action. How so? The statements that, what are protected by presidential union, are statements made by President Trump in June 2019. Those are jurisdictional and subject presidential union in opposition. Later, statements made by Ms. Carroll in 2020, really had no connection whatsoever. I understand that argument about the specifics.

my question is a little bit broader than that. Assume that we were to agree with you. My hypothetical is what if a president is sued and the president wants to not only litigate that lawsuit but actually wants to bring cross claims within the same time frame. Are you saying that whether or not the president wishes to pursue that litigation, the court would have to throw it out as lacking jurisdiction?

Well, the president is immune from liability in his official conduct. I don't think there's anything precluding the president to protect him in his ability to give his job that he's immune for anything that relates to official content. I don't think that would preclude any other actions. And I'll move on unless there are any of the question. So, and should the court find that President's committee is waivable, President Trump still should have been randomly to amend to include it as a permanent defense. Notwithstanding the liberal standard under Rule 15, the lower court denied President Trump's request of amend his answer to include President's community based on support of delay in the supposed futility of his argument. Respectfully, the district court failed to undertake the proper analysis in coming to this decision.

First, the record is not supported by the bill to deny President Trump's part. The case was litigated for three years without the assertion of the defense. Isn't that so? That's correct. Yeah, and if that's the case, how was it an abuse of discretion for Judge Kaplan to say it's too late? Well, in terms of the reason, there was no practice. Discovery was already conducted, largely conducted? Right, and on the issue of discovery, since the Westall Act issue at the time, Ms. Carroll had a lot of him, in fact, they had questioned extensively as to President Trump's state of mind

and whether or not exactly the scope of this employment, which is a narrower test than the other perimeter test. So any discovery, they had no through so throughout the course of discovery. And I think it's important to discuss that the question is whether or not, when you're making the application for men, the question is whether there was any additional discovery that was necessary or any additional delay

that would have been caused by the man. Which here, there was no additional delay and no additional discovery that was necessary. So really, there's no prejudice by simply allowing the amendment as it was sought. And then finally, even if President's community is made of all, and even if the district were properly denied the request will be to amend, President comes still properly assertive defense by subsequently raising

it his answer to Ms. Carroll's amendment complaint. Both sides here agree that, of course, willing to Gilmore v. Schoherl and Shields the city trust governor, but the district court overlooked this was binding case law entirely and instead relied on an unreported sub in district. So I have a question on that issue. Let's assume, as you posited, if it is a defense and if it is waivable, have the amended complaint not been filed,

would you then concede that the defense was waived? Yes. Had the plaintiff not filed the amended complaint, And if it is a valid defense, non-jurisdictional and waverable, would you agree then? Would you concede that your client waived it by not bringing it that defense until after the amended complaint? I think in that circumstance, assuming that it was waverable

and that there was no abuse of that, then I would say that the defense is not, you know, properly raised at that point. But given the filing of the amendment complaint, of the amended complaint under shields and Gilmord, it was properly raised because those cases stand for the proposition that when amended complaints filed, it supersedes and replaces the original complaint, under the legal facts.

And there were only certain defenses that are not automatically provided upon filing of the amendment complaint. And those are the defenses listed in federal civil procedures called P2-25. And clearly is not one of the defenses from 12B6, or sorry, from 12B2 through 12B5. And even Ms. Carroll's position has been

all along that it's 12B6 defense. So even if the court were to accept that position, there's no question that it was properly ready under the Shields and Gilmore in response to the complaint. So I think no matter how you look at it, whether it's that presidential immunity is a jurisdictional defense that's not waverable,

whether the district court should have given us to amend concluded as a defense, or whether it was properly raised in response to the following the complaint. The defense was properly raising, was probably to walk back. So can I ask you simply, I want to make sure I understand your argument.

Even if we conclude that presidential immunity is waverable, you don't dispute that presidential immunity was waived, if waverable. We don't dispute that it was not raised in the answer to the initials. But in any event, you can move on to a second-tier argument, namely that he could still assert presidential immunity at the time of the filing of the amended complaint. Is that right?

That's right. Finally. As to the merits of presidential community, the sub-residential community is a meritorious defense here. The Supreme Court in Nixon v. Fitzgerald established that President is immunized from liability for conduct falling within the outer perimeter of his official responsibilities. Crucially, this test is an objective one.

It's focused on the nature of the acting question, not the motive underlying. The Nixon Court expressly rejected a subjective test and presumably subject the President to trial, virtually every allegation that an action was unlawful or was taken for a forbidden purpose, and that would deprive the Presidential Committee of its intended fact. As a result, the President's union can be overcome by allegations of bad faith and malice, and even alleged wrongful acts away within the outer perimeter of the President's authority.

The interview, objectively, there's no question that President Trump was acting to the outer perimeter of office when he issued statements in response to Ms. Carroll's allegations. One of the statements was issued in an official White House press release, while the other two were giving in direct response to report these questions of the White House. In addition to denying the substance of Ms. Carroll's allegations, the statements also addressed numerous highly-putable issues, including Justice Kavanaugh's confirmation hearing, the role of media and politics, the state of the Federal Reserve, and current foreign affairs, and they were all in response to questions from reporters. These statements were also issued in a defensive manner. Given the serious accusations made by Ms. Carroll, President Trump then sitting president faced an unprecedented and unprovoked attack on his character. As both the leader of the nation and the head of the executive branch, he cannot sit idly by and remain plowed in the face of these sensationalized allegations. He had a duty to respond.

At a minimum, it was necessary to maintain the continued trust in respect to this constituencies and to preserve his ability to carry out his responsibility to support. In denying the challenge conduct was within the outer current group of President Trump's official conducts, the district court deviated from the objective task required by this. For instance, the district court accepted that President Trump was addressing a matter of public concern because the accusation had refueling his character and interned his ability to affect the government. And it also accepted the premise that President's speech on matter of public concern comes within the President's official responsibility.

At this point, the district court's inquiry should have been. Nonetheless, it proceeded to perform the type of highly intrusive inquiry that the Nixon court expressed me prohibitive. The district court twice characterized the challenge students as a personal attack against Ms. Carroll and found the statements were made for improper purpose. But by looking towards the President Johnson-General's motion to make the statements, the district court failed to utilize an objective approach that is required for assessing the criminal in presidential Council, is this a good breaking point in your argument?

I noticed you're almost eight minutes over, and I will give you the time that you've saved for rebuttal, but if you have a few arguments to wrap up, just wanted to remind you that you're about eight minutes over. Thank you. May it please the court, my name is Joshua Mapps, and I represent things for Pelley, E.G. Carol. All right. Virtually, every argument that this argument presented both in his was ivory and the argument today is in statement.

I'm going to go through them one by one to make sure that I trust thoroughly each of the contentions that he set forth. I'll start with the point about the ability. As we explained at great length in our week, the Supreme Court in Nixon patterned the law of presidential absolute immunity on existing traditions of absolute community, a tradition of a doctrine that had often understood. to be liable at the discretion of the person who's protected by the immunity doctorate. The presidents, the Department of Justice, and the federal courts have overwhelmingly shared that understanding.

I know sometimes it could be the effect where both sides say C.E.G and they cite the cases and it looks the same. It is decisively, decisively in our paper, we review it every single case since Nixon that cites Nixon for this proposition. And about 75% of them understand it as non-jurisdictional, which is consistent with the overwhelming practice of the executive information on progress. Now, against all, and then I would have one of those points to this, understanding it as non-awaitable would mean that the judiciary is forcing

presidents to allow the courts to adjudicate the outer limits of the presidential office in a circumstance where the president doesn't want them to do that, and whether the president might, in fact, for her, or strategic or other reasons, to litigate a case on the merits for a great contract claims. Judge Kahn's use suggestion. Now, against all of this, Mr. Trump, that is essentially two arguments.

The first is that because presidential absolute community implicates broader structural considerations, it cannot be able to. That is, quote, the vast majority of doctrines that arise from the separation of powers for waiting. That includes the appointments, cause, or recess appointments, cause, the non-delegation doctrine, the court of Congress clause, many limits on non-articles

Can I ask you if you would respond to Attorney Medeo's response to my question, and I pose the same question to you, which is how are the protections afforded by presidential immunity reduced in any way by a finding that it is a waivable defense? His response, I believe, was that it undermines the separation of powers doctrine. How do you respond to that? It does no such thing. I would say that if anything, the opposite is true. Finding that this is a waivable doctrine is to say only that it is within the discretion of the President

to choose whether to assert it. Given that this doctrine exists for the purpose of protecting the President's discretion to make choices about when to raise the prerogatives is in her office, it is perfectly consistent with the premises of absolute community. To say that it's waivable, if it's waivable, anything saying that the president cannot waive it even if they want to is what would

have aggrandized the judicial power, the expense of the executive power, by unduly limiting executive fraudulent which is the very thing that this doctrine exists to protect. And it's hard to imagine that future presidents would suffer any chill in the exercise of their powers by virtue of this doctrine being capable since it's up to them whether to waver. And presumably the next president will not worry about what would happen if it's with you Because that would only ever occur that they made a local and voluntary choice to do so So all it does is give them discretion And so you know, mr. Trump says that because this arises for the separation of powers it has to be wavable

That's not true. It's simply not true many separation of power for miscables are wavable That includes many doctrines that protect the product is the executive branch like state secret like executive privilege, like immunity who compelled congressional testimony of the president and his senior advisors. How do you respond to the argument that even if it is waivable, that once Ms. Carroll filed her amend a complaint that gave Mr. Trump the ability to assert the defense? Absolutely. That argument is foreclosed by no more, and that's the case for four separate reasons. And the court will allow you off with them one at a time. I have to admit the 12B5 to 2 to 5. was only given in their reply rate, so this is my first chance to responsible. So I don't make sure I'm thorough about that.

The first is that that interpretation of Gilmore conflicts with Gilmore, because in Gilmore, what was an issue was a motion to compel arbitration. And a motion to compel arbitration, as this court has recognized in Barrels versus Brinker Rehnquist Corporation, and as many courts in Eastern as other district's recognized, does not arise under a federal rule of civil procedure 12 .

Motion to compel arbitration is where to normally understood. as arising either directly under the FAA Section 4 or as arising under federal civil procedure 12Cences. So Gilmore itself does not support the idea that this defense was brought back to life because it is not a toll be to be motivated defense. The next difficulty with Mr. Koms' position is that it is inconsistent not just with the sort of mechanics of Gilmore, with the language view. What Gilmore fundamentally said is the filing of amendment and complaint doesn't bring

back to life, anything that involves the court issue of a party's willingness to submit a dispute to judicial resolution, and then identify the 12b to 12b5 modes of defense as just examples of that. But it is hard to think of something that is more obviously an objection to the submission of a dispute to judicial resolution than a claim of absolute immunity from suit in the first place. That's the second problem with that. their position. The third problem is that accepting their position to be in unequivocal and off-sided circuit split in which this court would be the only work to reach back in the as we explained in our way multiple other courts, all of whom started originally with video

markets, which then went to the 11th circuit and to the 6 and 7 circuits, all of the other circuits that have reached this issue said that when a party files and amended complaint, the only way to defenses that are required are those that in finitely that in the same are necessary to meet some kind of fundamental change or novelty in the plaintiff's new allegations. Here, we raise that point in our review, and Mr. Trump doesn't identify and can't identify. Anything that was new in our amended complaint, that is a matter of fundamental fairness would require the resuscitation of this otherwise way of defense. And so if this court were to say that our amended complaint brought his defense back to

like it would be direct contravention of the law of at least six, seven, and eleven circuits, based on a reading of Gilmore that has been able to commend it from the tax of Gilmore. The final point I made, there's one more, is that it would actually also be in us with how this court has recently interpreted the law governing responsive pleading to counterclaims. So there was a case called the Geico case, and so this court clarified, is that when a party believed in the case amends its complaint, the only counterclaims that the only counterclaims that be, raised in response to the amended complaint are those that will link directly to what is new in the amended complaint. You can't allege counterclaims and put for a election at the beginning of the

and so as part of the broader jurisprudence on this court thinks about the response to amended pleadings. Their position is more close. One of your claims on this issue was that your client was prejudiced because you were unable to conduct discovery on the issue of presidential immunity had it been raised three years earlier. What discovery would you have sought in terms of addressing the issue of immunity discovery? I'm going to be very specific in answer to that question. There are three forms of discovery, and I'm going to name and need some of the questions. You would have asked, before I do that, you don't indulge me, I just want to set up why we need this discovery. And I'm going to start an answer to that with Clinton versus Jones case, because it really comes

from there. So in Clinton versus Jones, most of the claims involved acts that Mr. Clinton committed before he was in office. But there was one claim that Paula Jones alleged a defamation claim arising from Clinton's acts while he was president. Specifically, Jones alleged in her definition claim that Clinton had directed his White House ace and the senior White House spokesperson to quote publicly grand barbed by denying that the incident had occurred. From that claim alone, the Eighth Circuit noted that whether presidential immunity applies is, quote, not free from doubt. And the Supreme Court in Intervenant did not reach that issue. It stated only that that defamation claim, quote, arguably named ball conduct covered by President

or notherty. Clinton thus saw a close case in arguable case where the president, in coordination with senior White House agents and press officials, issued a rare denials. of sexual misconduct law and in office. Here, of course, Mr. Trump wrote a series of attacks with highly inflammatory personal attacks on Ms. Carroll.

And as far as we can tell from the limited discovery we have on this, did so with no involvement whatsoever over any one of others. Can you answer my... I appreciate that you want to make these arguments, but if you would kindly answer the question

that I posed and if you need me to repeat it, I'm happy to do so. Okay. The reason I wanted to lay that up is to explain the legal relevance in what I'm about to describe which is a discovery. So first, in his deposition, we would have asked Mr. Trump for a long-for detail about the process to which he had issued and prepared in June 2019 statements. And we would have also have asked questions, which we didn't ask, about how that compared to the usual process by which he had issued other students. And what would that have, how would that have informed the argument?

It would be wanted, I mean, again, when the standard for discovery is relevant. And under Clinton v. Jones, where the court characterized as an arguable case, the bare denial of a sexual assault application by a president who issued an active coordination with senior White House personnel, we think it would have been highly relevant that Mr. Trump went well beyond their denial. He did so in a series of statements, and he did so apparently without any involvement or coordination or any other White House personnel. I think under the Clinton case, that would at least be relevant to the analysis. So we would have asked Mr. Professor, I have several more problems in the subways to sort of lay out what we would have asked. We would have asked him how this process is similar to, or different than his pre and post-presidency process from meeting similar statements, responding to similar claims. And we would have asked him about inconsistencies between his deposition testimony and his written the software responses.

In those responses, he had identified six people, Dan Cunna, Nip Luna, Molly Michael, O'Kiggs, Derek Kynens, and Jared Kushner, as involved in the process by which he made these statements. But at his deposition, he denied all of that and insisted that the written responses to apply that. That's the first category of discovery of the discovery of this office. The second is that we would have pursued third-party discovery into some of the illegal tools that he had made. A course of the discovery that we didn't undertake because we were anxious that doing so would invite concerns about executive privilege that can significantly prolong and complicate the litigation. But all that was in issue was Mr. Trump's subjective mental purpose for the statements, which was the Westphal Act issue.

That discovery seems to us not particularly important. If what matter was the process and involvement of White House personnel and officials in making these feelings is highly important. Finally, third, we would probably sought expert discovery for prior senior White House comms and press officials that would have been relevant to process and process for such denials. And we may also have pursued requests that we had contemplated sending to the National Archives for some of the internal White House documents surrounding these statements, again, request that we didn't pursue, given the complexity of that procedure, and given that we had

not understood any of that to actually fact meet that issue, when all that really mattered was his mental and so we had significant discovery. I mean, I was one of the lawyers on the case at the time. These are things that we thought about in real time and made a choice not to do because because the risk of prolonging the litigation and creating complex executive of the price did not seem worth it to us as measured against the absence of an absolute immunity defense,

which Mr. Trump had not raised, had not mentioned in years, and at no point in the entirety of the discovery process did he never indicate that it was irrelevant to the claims for defenses. I'd also know in that process he threatened several times to raise executive privilege. So our concern about that is not expected,

who's very much in play. And in that respect, Mr. Mr. Trump's decision to spring this argument on us, three years into the case on the other side of the close of all fact discovery, was indeed prejudicial. And I would highlight that under this court's precedence, we don't need to show, you know, we don't need to summon Mount Everest in showing how much presideness we suffer, although I think it was real, in terms of our ability to actually meet decision. Because his delay was for three years, and because he has never, to this day, offered an escalation for it, other than the Westfall Act of all.

which I have concerns you who submitted, the burden for us is to just show that it caused us some questions, and I think we can need that right. And there was an amendment sought in this case by the defendant to amend the defenses to add additional defenses, correct? That's what, while the Westphail Act was app was pending, just to sort of take this point on the floor.

There are several problems. And that's one prior, which is, while the Westphal Act appealed is that it was pending, If Mr. Trump truly believed that all he was saying in the state court is that he was raising a temporary defense, but he was going to preserve his personal immunity for as soon as he was out of office. Well, as soon as he was out of office, Mr. Trump didn't face it. Instead, at the first available opportunity, what he raised was an anti-slash defense and counter. And if Mr. Trump truly believed that the pendency of the West Hall Act,

that's not have prohibited him from fully litigating the case as a party in his own way, or raising his own protections, there's no reason why he would be able to be. would have done that. There's also no reason why he then would have consented to have the case you tried before there was a decision on this, or why he would have engaged in the entire his government process. Because a party who believes that they are holding on

to absolute immunity from suit does not behave the way that Mr. Trump behaved in this case. Now, Mr. Madsen, I take it from what you have said that you would defend Judge Kaplan's dichotomy between, on the one hand, the statements made by Trump denying Carroll's accusation, which Judge Kaplan soon fell within the so-called outer perimeter of his presidential duties.

And on the other hand, Trump's attacks on Carol. You would accept that dichotomy. So for purposes of the merits of the presidential absolutely meaning, the fact's just in the jury on the state. Yes. Yes, sure. Yes, I would think that he would...

Tell me how we're supposed to draw the line between these two, between statements denying Carol's accusations and Trump's attacks on Carol with respect to the accusations. Of course, I will answer that. Of course, the court will reach that question and it concludes that the Sir Schott properly racist attacks.

And that would be, I should say, a landmark opinion because no court has ever issued an opinion, holding that the president enjoys absolute nudity, whenever they speak in public on a matter of public concern, the only opinion on this issue is Judge Medas' opinion, which unquivocally rejected that proposition. But I do think the distinction that we've drawn is an intuitive one, and it's one that is grounded in the Clinton versus Jones case,

as well as the underlying foundations of Nixon, which is that even accepting that the administration of government and in some circumstances require that a president responds to questions that are raised about his conduct before he came into office. A denial of those accusations addresses that concern. And I assume that that is why the U.S. Supreme Court, he asserted in the Clinton case, saw it as arguable and as made well that Mr. Clinton would have actually enjoyed an absolute immunity of defense there. Although to be clear, that Mr. Trump's rule was the law. They would have just said he had it.

it wouldn't have been a close call. But this thought is close to the issue of bear denial. Here, I think it is things is that there is no Article 2 function that is further or invoked or anyway advanced by a precedent engaging repeated private attacks on a citizen, insulting her appearance, accusing her of making accusations against third parties that have no relevance to the matter at hand, and going beyond the denial.

And I should say, I appreciate that there's an understanding the court not to want to essentially line at it, the president's statement, which parenthetically would not, this court would not need to address, if you included that Mr. Trump had in fact made this. But if the court does get there, the concern on the opposite side of things is that the president is free to state anything he wants in public, no matter why, because anything the president says is potentially the concern to somebody or could be described as a response to something. And what exactly is wrong with that?

I think what's wrong with that, and Judge Menz has described this in his very thoughtful opinion in the Thompson v. Trump case, which I should note is our review on appeal to the D.C. Circuit and has been pending before them for quite some time, and so there are sort of briefingly the resources on that are not parties to offer in this context. But I think what's wrong with that is two things. First, it takes what is meant to be an immunity for certain official functions and essentially converts it into an immunity for the office as a whole, which Clinton told us is not how presidential absolute immunity works. And I think the second problem of it, practically, is January 6th, and other circumstances like that.

I don't think we are in the realm of hypotheticals in acknowledging that there are circumstances with somebody who holds the office of the President may engage in public speech on matters that have nothing to do with the operation or administration of the government that are not in furtherance with any federal policies or programs or take care duties. that cause significant harm to private citizens, where it would be, in many ways, inconsistent with living in the presidential rather than an environmental system to say that they are holding new for their partners.

And has any further questions? Seeing none from my colleagues, thank you, counsel. Thank you very much. Counsel, to keep it fair, I'll give you an extra minute added onto your rebuttal time. because your counsel went more than eight minutes over. All right. Thank you, counsel.

Okay, so I'd like to address a couple of points. First, I'll just start with the amended complaint and asserting the defense and the answer to the end of the complaint. Under Gilmore, again, we cited in our brief that there are many cases which have interpreted. The Gilmore case, first of all, does and Shield the local specifically cite. to be 12b2 and 12b5 defenses as being the only ones that are not automatically revived in the responsibility complaint.

And many courts have interpreted that as well and agreed with that understanding. But even if that were not the case, there's really only two alternatives here. It's either that presidential unity is a jurisdictional defense, which is what we are attending, or that it's 12b6, a merit-based defense. Under 12b-1, obviously, subject matter,

question is not available. And under 12b6, as the other side contends, it's very well established under Shields and Gilmore and those line of cases that any merits-based defense, if it's an effort to achieve judicial resolution of a controversy, that it can be brave in response to a point. So whether it's 12b1 and 126, either way, it was effectively applied in response to the point. And onto the next point, in terms of the next point, in terms of the point, in terms of the point, In terms of the way you will be generally of presidential unity, whether or not the tax presidential upon you undermines it, the other side that we have to look at here is exactly what's happened in this case. President Trump has now tried to raise presidential mutiny in times and has been

rejected by the court three times. And, you know, when you're looking at how courts deal with the high deference votes to the Office of Presidency and the separation of powers and, you know, making sure that they're not intruding upon executive function, that's exactly the reason reason why it can't be treated that way. Can't. No, go ahead. Please finish that. The judiciary can't be allowed to take a position where it's foreclosing the president and waiting the president in a situation where he wants to, and he wants to be immune

from liability. And now it's, you're stuck in a position where the judiciary can continuously reject their attempts to bring a risk defense, which is a separation of terrorist case defense. Counsel, I'm trying to understand why your client did not raise the immunity. defense initially, if it is, you know, a defense wanting to be asserted, it's such an absolute defense. Why not raise it immediately? But even if not, he sought to amend the answer and added an anti-SLAPP defense in a counterclaim. Why not raise the absolute immunity defense at that time?

The anti-SLAPP, that was a motion to amend the answer, but that was a anti-SLAPP defense. specifically taking advantage of the anti-slap law. And that was the only amendment that was included in that motion. Strictly anti-slap. It was a very narrow amendment. There was no other defenses rates at that time. But it was a motion to amend the answer to add a defense. So why wasn't the other defense added?

It was simply it was an infest... It was a few of the motion to include an antist lab, and that was the only purpose of the motion at that time. So it simply was not... is not included at that at time. And again, the other question on discovery, you know, and again, just to re-emphasize, the Westphal Act appeal was going on this entire time

for years, and the central question that appeal was whether or not it was in the scope of this employment. And that's a more narrow test, and it's importantly a subjective test as well. So the amount of discovery generally needed for a Westphal-like scope employment test versus an immunity, absolute immunity, presidential immunity, objective test,

is going to be much more intensive. And in fact, Ms. Gaila did conduct much discovery on that issue. And in fact, that, most of that was the basis for their amendment complaint, because they, the questions they had to ask President Trump at his deposition about whether or not it was in the scope of his employment. So they certainly had the opportunity to obtain that discovery. They did obtain that discovery. There was certainly no prejudice there in terms of raising the issue. And again, finally, the last point that I addressed is, you know, Judge Meta, in his

decision was based on an entirely different premise. We was talking about the public speech of the president that we're dealing with here. That was based on, it was finding that it was based on his capacity as a candidate as opposed to president. It still doesn't be an official function. In fact, in that it's unquestioned that when the president speaks publicly, that's pretty scope of his office.

So here, there's not even a conceivable non-official function as there was to be a public public. as there was in Thompson where it was, you know, that he could have potential to be being as a candidate as opposed to the president. Here, he's out in front of the press, he's answering questions. He's, you know, responding to this important issue of public importance, and I think there's simply no question that he's acting as a part of the impact passed. And so last issue very quickly is on divestiture. Again, that really comes down to a question based on Judge Gavis. one's ruling of whether or not the appeal is a reasonable reason for a good

year. We obviously believe that this appeal is not for a person for that reason that we would be the court have been in that's jurisdiction and defendants of this appeal. And unless the court has any other questions, that's all right. I see no further questions from my colleagues. Thank you, counsel. That concludes this matter and the court will take, will reserve decision. Thank you.