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(NEW YORK) — Former President Donald Trump lost his bid to invoke an immunity defense to E. Jean Carroll’s remaining defamation claim on Wednesday, clearing the way for a trial on damages to begin next month in New York.

The 2nd U.S. Circuit Court of Appeals ruled Trump waived the defense of presidential immunity because he did not immediately invoke it when Carroll first sued him for allegedly defaming her by claiming she fabricated her account of a mid-1990s sexual assault.

“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 waived the defense of presidential immunity by failing to raise it as an affirmative defense in his answer to E. Jean Carroll’s complaint,” the decision said.

Carroll, a former columnist at Elle magazine, successfully sued Trump for defamation and battery and was awarded $5 million in damages. The judge in Carroll’s remaining defamation case against Trump, Lewis Kaplan, has already determined he is liable so the trial will determine how much he should pay.

“We are pleased that the Second Circuit affirmed Judge Kaplan’s rulings and that we can now move forward with trial next month on January 16,” Carroll’s attorney Robbie Kaplan said.

Trump’s lawyer, Alina Habba, immediately said they would appeal the decision to the Supreme Court, but later offered an “updated” statement, saying, “The Second Circuit’s ruling is fundamentally flawed and we will continue to pursue Justice and appropriate resolution.”

Trump had argued presidential immunity is automatic, but the appellate court said “recognizing presidential immunity as waivable reinforces, not undermines, the separation of powers and the President’s decision making authority by affording the President an opportunity to litigate if he so chooses. Accordingly, we hold that presidential immunity is waivable.”

The court also rejected Trump’s attempt to revive presidential immunity as a defense because it took him three years to bring it up.

“Defendant unduly delayed in raising presidential immunity as a defense. Three years passed between Defendant’s answer and his request for leave to amend his answer,” the opinion said.


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