American court hearing recordings and interviews - Carroll v Trump, 9/12/2023 argument to US Court of Appeals for the 2nd Circuit 23 1045 & 23 1146 mtn

Episode Date: September 30, 2023

publicly available audio recording Per Reuters: Trump can't delay second E. Jean Carroll case, but his appeal is sped up By Jonathan Stempel September 13, 2023 NEW YORK, Sept 13 (Reuters) - A federal appeals court on Wednesday rejected Donald Trump's bid to put the writer E. Jean Carroll's second defamation case on hold, but sped up the former U.S. president's appeal. Trump is appealing U.S. District Judge Lewis Kaplan's June 29 refusal to dismiss Carroll's lawsuit, and Aug. 7 dismissal of some of his defenses and a defamation counterclaim against the former Elle magazine columnist. The 2nd U.S. Circuit Court of Appeals in Manhattan combined the appeals and will hear them on an expedited basis, with oral arguments possible by late October.... [See https://www.reuters.com/world/us/trump-cant-delay-second-e-jean-carroll-case-his-appeal-is-sped-up-2023-09-13/]

Carol v. Trump, tandem cases, tandem motions, 231146 and 231045. So we'll hear argument in that motion. Counsel? May it please the court. My name is Alina Habai, represent defendant appellant, President Donald J. Trump. This appeal raises an important question that will affect the delicate balance between the judiciary and the executive branch for many years to come. It is our position that the underlying action with the trial scheduled for January 15th, it is imperative that this court stays all district court proceedings until it resolves

whether a president may raise his presidential immunity defense. First, this appeal is raised in the immunity context. The lower court is divested of jurisdiction until the appeal is resolved. That is well established. Is that an issue you're asking this court to resolve on appeal? Are you challenging the district court's funds? finding that it retained jurisdiction because any appeal would be frivolous? Your Honor, our first argument is that we never waived, that basically this is divested

and they don't have the right to decide whether presidential, and frankly, Judge Kaplan didn't decide the issue of presidential immunity. I understand. I just want to be clear what relief you're asking for now. You're looking for a stay in this court and we have the four-factor test for a stay. But you're The first point is that the district court didn't have jurisdiction. If that's right, you don't need to stay from us. Correct, Your Honor. So how does the district court's decision that it retained jurisdiction, how does that

that affect the motion before us? Help me out. Sure. What Judge Kaplan did, Your Honor, was he's, in my opinion, sidescurted the well-established rule that certified the appeal as frivolous. When he did so, that was an error that I would like this court to. address. However, in this appeal, we assert three independent and meritorious agreements going then to the four factors that Your Honor just mentioned. And I do believe either under the divestiture of jurisdiction argument or under the four factor test, no matter what this matter should be stayed, pending the appeal. The four factor test requires you to show, your client to show, that there is a likelihood of success on the merits, which is different from,

the district court finding that it had jurisdiction because the appeal was frivolous. So it goes to, you know, what kind of standard we're going to apply here. Right. And with divestiture, our position is it's automatic. It always has been automatic. If you look at the Harlowry Fitzgerald or the Griggs case, we've never had a decision that said that if, you know, especially with immunity, let alone presidential immunity, which is a heightened level, presidential immunity, you must stay this matter because the

entire case then should be stayed and President Trump would be incredibly hurt by the fact that he would have to go to trial on a case where he would likely just not even have a trial hurt because of presidential immunity. So that's the divestiture matter. If Your Honor, I can move on to the state the four factors test as well, which I believe gives us good grounds, even if we use the traditional factors, even if we said that there wasn't divestiture of jurisdiction, which I argue that there is. I believe that under the state factors, that also grants relief to President Trump here. The likelihood of success on presidential immunity is not waivable. And for the first prong, our argument is that in the Supreme Court, Nixon v.

Fitzgerald. I'm sorry, you're saying it's not waivable. And you've also asserted that you had asserted the presidential immunity, absolute immunity defense at different points over the past three and a half years of the litigation. But I was not seeing that in the record. Could you point to the earliest time in which you made the absolute immunity argument and briefed out? Sure, Your Honor. First, yes, our position is that it's not waivable. And if we were to go by Judge Kaplan's position that we needed to assert it, we did assert it in two different instances, well, three instances, two motions. The first, I can give you the exact date if Your Honor would like, but we asserted it in a motion for summary judgment. I just didn't see it in the papers.

Sure, no problem, Your Honor. I can give you the exact date. It was noted that we did it on the motion for summary judgment, which was December 20. I have the brief. Is there a place that you, so there's a discussion of presidential immunity generally. Are you asking me? The solution of the absolute immunity. So that would have been in December. December 2020.

In our motion for summary. So eight months ago. Yeah. Basically. And so already the litigation had been going on for several years. years. Is that right? The litigation had been going on, but I think that's a good point, Your Honor, that I'd like to address. Our litigation was very complicated. We had the Department of Justice step in, and the Westfall Act, as this court remembers, which is, by the way, Morse is a subjective test,

not an objective test like this case, took years in three different courts for us to address whether that was an issue here. And unfortunately, we never got to a definitive answer on that. But that's a perfect example, Your Honor, of why this case was so complicated. in hindsight if you look at it, and I understand what my opposing counsel is going to argue. This case was not plain and simple. We had two matters. You're sure. Please go ahead. Was there anything precluding you from also asserting presidential immunity at the same time that you argued Westfall immunity, I mean parties argue in the alternative all the time? There is nothing precluding it, but I think it's, I don't think

it's relevant because I truly believe that, and the case law stays, that you cannot waive presidential based on separation of powers. And that's something that is incredibly important. So, you know, one of the things your adversary argues is that if we agreed with that, we'd actually be tying a president's hands who might want to waive the immunity, have his day in court, and presumably vindicate himself.

So why shouldn't we be cautious about a decision that would tie a president's hands? Because no single president in this, country, be it President Trump or President Biden or President Obama, no president should have the right to change the constitutional separation of powers that are divested with the executive branch because it is public policy's interest that a president be able to address questions of public concern. What is the best case for that? I mean, you speak broadly about separation of powers principles and I appreciate that. Sure. Nixon. Nixon v. Fitzgerald is on point, in my opinion. Nixon

B. Fitzgerald addresses this exact issue. It states that you absolutely have to, for very many reasons, create... And says that the president is without power to waive immunity. No. What it says is that the president's... I can quote it, Your Honor, before exercising jurisdiction, it 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. That's why it's my position that I don't think any president should be able to waive that. That's different from, I think, the answer you provided in such strategies. So Nixon doesn't say that the president is about power.

There's this issue of a presidential decision or executive decision about when to waive and when not to waive and when to appear in court. And I didn't hear anything in the language that you provided in Nixon that addresses that. Well, I don't think I'm understanding your question, Your Honor, I apologize, but my position is still that it's not waivable. And maybe because I'm not sure that I understand the answer. Okay. You've given resting on Nixon.

Okay. Which doesn't seem to answer the question of whether the executive can waive immunity. He cannot. Okay. In the alternative, I also believe that the President has shown sufficient probability of success on the issue to leave to amend. Rule 15 is a liberal rule, as we know. That was another instance, Your Honor, going back to your question,

where we raised it. We only raised it in the motion for summary judgment, which there is no case law indicating that... And, sir, the motion to amend was when? The motion to amend was after the December 22-2 date. So we're talking in the recent eight months. That's correct, John. But the litigation had been going on for several years before then,

and this was the first mention of the community. Is that right? If the amendment had pertained to conduct... President Trump when he was in office, I would understand your argument. But am I correct that the amendment dealt with post office conduct? Well, no, Your Honor. Everything on this case was rooted in the 2019 while he was in office. This is this case.

The amendment charged him. It was complaining that he repeated these statements after office. therefore defamed the plaintiff again. Am I right? Yes. So, you see, I understand if they had come forward and amended their complaint to add another allegation or another claim that pertain to his conduct in office, that maybe you would have an argument that, well, new claim,

we're going to assert the immunity with respect to this, even if we didn't assert it before. But where the claim pertains to post office conduct for which he wouldn't have immunity, why do you think you have the basis for raising it now on your amended answer? Well, actually, Your Honor, I also raised it there. It's a good point. At that point, when they brought that, I reiterated, that was frankly the first time. I reiterated that presidential immunity in the alternative was an issue,

and the judge struck it down. And then I did it. But stay with my question about how if the amendment did not relate to conduct in office, you can amend to add your answer to add an immunity that would only pertain to conduct in office. And we had both here, Your Honor. Let's not forget there was an amendment. Not the amended conduct. The amended conduct still was rooted in his 2019 conduct.

If she didn't have that, and let's also not forget, there was a second case which arose and was fully litigated in five months on the flip side, this plaintiff has not been prejudiced in any way, as we've seen. So that included, actually, post-hoc, post-presidency, truth posts. So I appreciate what you're saying, Your Honor, but if we're not to bring it up in the motion for summary judgment, and we brought it in the motion for summary judgment, it was struck. And then we brought it in when she amended the complaint, and if you look at Shields, which this court itself decided, in the Shields case, once you amend that complaint, which they did, we had a right to put a new answer in with affirmative defenses, and we stated the affirmative defense of presidential immunity, and that was also struck.

So I still think, and I go back to my original, and I'm happy to go through irreparable harm and all the other factors, but I think I've stated them indirectly to some extent. Let me ask you a slight housekeeping matter. Sure, Your Honor. Just in the alternative to give us a sense of what the possibility is. let's say that we deny a request for a stay. Would you be prepared to expedite, to brief on an expedited schedule, the presidential immunity issue,

and whatever other issues you want to have a merits panel? I'm sorry, I couldn't hear you because of the coffee. I'm sorry. Expedite. To expedite the briefing. Yes. On the presidential immunity issue and whatever other.

issues you want to address? Given that this doesn't go to the Supreme Court, I mean, absolutely, Your Honor. I believe very firmly that we are correct in this. This is a very important issue. I'd be happy to expedite. So if we gave you 15 days or 20 days, okay, you just responded to that question. I have trials, sir, in three weeks, but in New York. Okay, okay. So, I mean, give Given my schedule, I do have the Attorney General's case in New York, which starts on October 2nd. I would be willing to help in whatever way if the court required me to further brief. You have no general opposition to an expedite a briefing schedule if we were to deny. No, Your Honor, I am very firmly believed that I'm happy to expedite and get all hands on deck on this.

I would just ask the court's indulgence that I do have trial on a very large case. hearing that and being mindful of it, nevertheless, it seemed to me that you almost have the merits of your argument briefed here already when you argue that you're likely to succeed on the merits. And I would think it would be in your strong interest, actually whether we grant or don't grant this day, to get this to the merits panel as soon as possible. Do you really need more than two weeks to polish up the arguments you've basically been doing? Well, I mean, I think that that would imply that you would deny the fact that the court was divested of jurisdiction. And then I have to, you know, I would like to see if that is the case, the court's decision. Obviously, yes, we are pretty much free. That's where I started to ask you whether you were asking this panel to conclude that the district court heard when it said it retains jurisdiction. And that didn't seem to be the motion you were making, but it is the first point. It is. It is. And what I did, Your Honor, as any attrition. I think would is give you the alternative that if this court didn't find that you they were

divested of jurisdiction then I still do believe that we would win under the four. Well let me deal with that. Sure. That issue could also go to the merits panel whether or not the district court can retain jurisdiction in these circumstances. What is the risk to you of not ruling on that for two or three weeks while it's expensive? judiciously briefed and goes to the merits panel. I want to be sure what the harm is to your client if we don't rule on the district court's

jurisdiction for a few weeks. I mean, we can start with the basic fact that he's paying his attorneys to then fully brief something with a trial pending on something that shouldn't be briefed and is a waste of resources, both judicial and personal. Number one, number two, more importantly, Your Honor, is the presidential immunity is so important. It's different than absolute immunity. It is a heightened level of immunity. And if we don't preserve that by saying that once presidential immunity is... But you'd get to, I'm sorry, interrupt, but you'd get to argue that to the merits panel.

Sure. I'm just trying to figure out, is there something you anticipate having to do in the district court or the district court doing in the next few weeks that makes its retention of jurisdiction problematic for you? Sure. I think that. frankly for my client the schedule alone is a very compelling reason we have trial in October 2nd which I am his attorney for that trial will go until this case not on this case till December 22nd in the state of New York I am then scheduled to be on January 15th trial pushing this out 30 more weeks just purely from a

scheduling perspective your honors is incredibly difficult for me to then be on trial and prep for this trial in two weeks but once again as judge Raji pointed out with regard to the absolute immunity argument, you've briefed already before us, the divestiture of jurisdiction argument. Correct. That is something that could be buffed up and then sent onto a merits panel as well, couldn't it? It could, Your Honor. I would just ask that if that is the case, that perhaps we do stay, even for a short period of time so that I have the proper amount of time to prep for the trial, which I know they say is two or three days, but frankly, in my opinion, shouldn't even be happening. Well, is there any basis for thinking that things

would be particularly active in the district? court over the next two weeks? On this case? Scheduled right now, yes. No, but I will just be out of pocket, frankly, and in court for two months. I mean, it is what it is. I have one. Unfortunately, our schedule sometimes.

Practically, because you're out of pocket are stayed. I mean, I would love to have a decision, but if the court would like it briefed, I will make it happen. I just ask that my indulgence in my clients schedule. Thank you. Thank you very much. Counsel? May it please the court, my name is Joshua Matz, and I represent the plaintiff Appelli, E. Jean Carroll. The defendant's motion rests on a single premise that while his appeals unfold, this court should intervene immediately

to preserve his asserted interest in not having to participate in this lawsuit at all. But that premise is squarely at odds with Mr. Trump's repeated choice to participate in every aspect of this case for nearly four years, and to urge an expedited jury trial on the case just six. months ago. Let me just Merritt's panel but the so the question first of all is this matter of district court retention of jurisdiction and then the four-factor tests for granting a stay I'd like you to address first the question of jurisdiction the district court was obliged to find that appeal would be frivolous to to retain jurisdiction and we know that it is has exercised that jurisdiction just in the last week with its decision that there would be no need to try liability only damages in this case. How can you support the fact that appeal is frivolous when we have questions about the exercise of presidential immunity in this case?

I mean, I would think that whatever we do in this case, we might have to write a decision and all of that. That hardly sounds like a frivolous matter. Yes, Your Honor. If I may, I just want to step back to the question of jurisdiction because I think the frivolity point is one aspect of that, but not necessarily the only one. So I want to answer your question,

but I also want to address the jurisdictional point more broadly, if I may. Under this court's opinion in the World Trade Center litigation from 2007, the court there and was asked to stay a district court decision on the theory that the district court lacked jurisdiction during an appeal from the denial of an immunity defense. And the approach the court took there, it initially stayed the decision, but then it lifted this day. And in doing so, it said that the motion to vacate this day, which involved the four-factor test, was, quote, inextricably intertwined with whether the notice of appeal in the first, place divested the court of jurisdiction. And then it went on to say that that analysis in some respect overlapped with whether the appellate court should restore the district court's jurisdiction, which is all to say that under the World Trade Center case, which is of course the controlling precedent

in this court, it appears that the four-factor test rather than a formal jurisdictional inquiry has structured the way that this court has thought about the presence or the restoration of district court jurisdiction and circumstances like these. If the court were for the first time to adopt something like the Seventh Circuit's apostol standard, which talked about frivolity, I would highlight that there, there are sort of two separate reasons why the maintenance of district court jurisdiction here is appropriate. One of them is frivolity, and I promise I will get to it. But the other, which Judge Easterbrook highlighted in that case, is that the defendant may waive their right not to be tried if they wait too long after the denial of summary judgment,

or if they use claims of immunity in a manipulative fashion. At that point, they don't lose their right to appeal to have their claims decided, but what they do lose is the right to have that happen before the trial goes through. We think that this case is a poster trial for the application of that principle for the reasons given in our brief, and we cited the Yates case from the Sixth Circuit as well. So I think there's two reasons by the district court retained jurisdiction, independent of its frivolity point. But on the frivolity point, I want to make sure I get to.

to it. Mr. Trump, I want to be thorough here as a housekeeping matter, he has sought to present three issues to this court on appeal. There is a frivolity finding as to only one of them. As to the other two, there isn't a finding of frivolity because they were never presented to the district court in the first place. So there's a Rule 8A issue with this court even taking up Mr. Trump's day application as to those two points. As to the sole issue he presented below, I do think that Judge Kaplan's frivolity finding was appropriate for a simple reason, which is that both we and Judge Kaplan identified, not a little, but a kind of overwhelming wall of authority that foreclosed the position that Mr. Trump sought to advance concerning the waivability of this defense.

And Mr. Trump offered literally no response. In his stay motion in the district court, he didn't even quote or cite the district court's decision. He offered no reason to think it was faulty. And I think what Judge Kaplan concluded is that where there's this overwhelming wall of authority and essentially nothing on their side, I mean, the most they offer in a reply brief here is a trained reading of a concurrence from the Nixon case where there's nothing on their side and an overwhelming weight of authority on our side and they can't even respond or they choose not even to respond to judicial analysis. I think that's where he concluded that a frivolity finding was appropriate. Let me state what I understand the defendant to be urging here, which is that he's going to raise

an argument that presidential immunity is not waivable. And to the extent you have pointed out to us that prosecutorial immunity and judicial immunity are waivable, they are grounded in common law and presidential immunity is grounded in the Constitution's principles of separation of power. And to the extent that that has not been addressed by this court, they raise a non-frivolous argument. However, we may decide the merits of it. So why is that not a plausible argument for the court to consider? Well, again, we think that question arises within this question of whether the district court retained jurisdiction, right? And the district court concluded it retained jurisdiction because it thought that position frivolous.

My main point that I want to emphasize is this court can deny the stay motion and expedite the appeal. and to be clear we agree with that approach, if it's the approach the court prefers. This court can deny the stay motion and conclude that the district court, at least temporarily retains jurisdiction, for either of the other reasons that I just gave, without necessarily reaching a finding

as to the correctness or incorrectness of the frivolity determination, which this panel may actually prefer to leave for the merits panel to ultimately decide in adjudicating the issue. So this court doesn't need to reach the merits, either the merits themselves or their frivolity finding as to that issue,

because there are other ways that it could appropriately, in my view, deny the stay and leave that issue for plenary consideration by a merits panel. But I do think, I'll sort of stand my ground on the point that we think the frivolity finding was appropriate, given the crushing weight of authority. And I agree it's an unanswered question, but it's unanswered only because no president has sought to engage in this sort of gamesmanship presented here,

and everyone who has thought to remark on it has found it to be a very easy question. And I think that was partially where Judge Kaplan came from. But we do agree that either under the four-factor approach or the apostol approach, really either of the apostol approaches because there's two of them consistent with that case, it would be entirely sensible for this court to deny the motion to stay under Rule 8 and for the other reasons given in our brief to expedite the merits of the appeal. And I am unaware of any kind of immediate pending thing in the district court. Obviously there's the trial set for January.

And in light of Mr. Trump's remaining trial schedule for 2024, we would very much hope that that trial date doesn't move so that if this court does expedite it, it expedited it in a way that arrives at a final decision of the court in time for that trial date to stand, since if it gets pushed back between his other trial dates and the election calendar, you know, the reality is it may be very difficult to find another trial date in 2023 or, sorry, in 2024. But if this court is inclined to expedite, that we would be perfectly prepared to brief on an expedited schedule. And we see very little risk of prejudice to Mr. Trump in the interim since there's no pending deadline of any kind that I'm aware of in the district court. Thank you very much. We'll reserve decision. Thank everybody. Thank you.