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, 77 F.4th 110, 117 (2d Cir. 2023). “While the terms ‘waiver’ and ‘forfeiture’ are often used interchangeably because they have similar effects, they have slightly different meanings.” Id. 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., 6 F.4th 400, 409