Carroll v. Trump

1
24-644
Carroll v. Trump
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 29 th day of April, two thousand twenty-six.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
RAYMOND J. LOHIER, JR.,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
STEVEN J. MENASHI,
EUNICE C. LEE,
BETH ROBINSON,
MYRNA PÉREZ,
SARAH A. L. MERRIAM,
MARIA ARAÚJO KAHN,
Circuit Judges.
_____________________________________
E. JEAN CARROLL,
Plaintiff-Counter-Defendant-Appellee,
v. 24-644
DONALD TRUMP, IN HIS PERSONAL
CAPACITY,

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Defendant-Counter-Claimant-Appellant.
_____________________________________
For Plaintiff-Counter-Defendant-Appellee: Roberta A. Kaplan (D. Brandon
Trice, Maximilian T. Crema, and
Avita Anand, on the brief),
Kaplan Martin, LLP, New York,
NY.
For Defendant-Counter-Claimant-Appellant: Justin D. Smith, James Otis Law
Group, LLC, St. Louis, MO.
Following disposition of this appeal on September 8, 2025, an active judge
of the Court requested a poll on whether to rehear the case en banc. A poll having
been conducted and there being no majority favoring en banc review, the petitions
for rehearing en banc are hereby DENIED.
Sarah A. L. Merriam and Maria Araújo Kahn, Circuit Judges, joined by Beth
Robinson and Myrna Pérez, Circuit Judges, concur by opinion in the denial of
rehearing en banc.
Steven J. Menashi, Circuit Judge, joined by Michael H. Park, Circuit Judge,
and joined by Debra Ann Livingston, Chief Judge, except as to Part II.E.1, dissents
by opinion from the denial of rehearing en banc.
Denny Chin, Circuit Judge, filed a statement with respect to the denial of
rehearing en banc.
Alison J. Nathan, Circuit Judge, took no part in the consideration or decision
of the petitions.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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24-644
Carroll v. Trump
M ERRIAM and K AHN , Circuit Judges, writing jointly, joined by R OBINSON and PÉREZ , Circuit
Judges, concurring in the denial of rehearing en banc:
We concur in the decision of the majority of the active members of the Court
declining to rehear these matters en banc. As our colleague Judge Chin has so clearly
explained in his statement, the petitions for rehearing do not point to any conflict
created by the panel’s opinions with binding precedent of this Circuit, another Circuit,
or the Supreme Court, nor do they persuasively argue that the decisions embodied in
our opinions pose a question of exceptional importance sufficient to support en banc
review. Likewise, the arguments raised in the opinion dissenting from the denial of en
banc review do not support rehearing.
We fully adopt the statement of Judge Chin as our concurrence in this matter.

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24-644
Carroll v. Trump
MENASHI , Circuit Judge, joined by PARK , Circuit Judge, and joined
by LIVINGSTON, Chief Judge, except as to Part II.E.1, dissenting from
the denial of rehearing en banc:
In this case, the panel issued two separate decisions that are
each the subject of a petition for rehearing en banc. The first decision
rejected the motion of the United States to substitute the United States
as the defendant after the Attorney General certified that the
President “was acting within the scope of his office or employment at
the time of the incident out of which the claim arose.” 28 U.S.C.
§ 2679(d). The United States has petitioned for rehearing of that
decision.1 The second decision affirmed the judgment awarding $83.3
million in compensatory and punitive damages and denying the
President’s motion for a new trial or judgment as a matter of law.
President Trump has petitioned for rehearing of that decision,2 and
the United States has filed a brief in support of that petition.3
I would grant both petitions because both decisions were
erroneous. The panel opinion denying the motion for substitution
made three primary errors. First, the panel erroneously determined
that Attorney General Bondi had “waived” the right to make a
Westfall Act certification because Attorney General Garland had
previously declined to certify—even though (1) Garland himself had
reversed a prior certification by Attorney General Barr, (2) the Act
1 See Petition for Panel Rehearing and En Banc Determination of the United
States and President Donald J. Trump, Carroll v. Trump, No. 24-644 (2d Cir.
Aug. 22, 2025), ECF No. 132.1.
2 See Petition for Rehearing En Banc of President Donald J. Trump, Carroll
v. Trump, No. 24-644 (2d Cir. Sept. 23, 2025), ECF No. 138.1.
3 See Brief for the United States as Amicus Curiae, Carroll v. Trump, No. 24-
644 (2d Cir. Sept. 29, 2025), ECF No. 139.1.

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contains no time limitation for making a certification, and (3) no
Attorney General was ever a party to the case and subject to any
waiver rules. Second, the panel misread the Westfall Act to prohibit
substitution following trial when a case begins in state court even
though everyone agrees that the Act allows substitution following
trial when a case begins in federal court. There is no justification for
the differential treatment. Third, the panel failed to correct the
decision of the district court that the President does not act within the
scope of his office when he makes public remarks to the press from
the White House.
The panel opinion affirming the judgment then made three
additional errors. First, the panel refused to address the effect of
presidential immunity under Trump v. United States, 603 U.S. 593
(2024). It did so on the doubly erroneous premise that President
Trump “waived” any immunity defense and that Trump v. United
States “simply reaffirmed long-established principles,” so nothing
prevented the President from raising the exact same arguments before
Trump v. United States was even decided. Carroll v. Trump, 151 F.4th
50, 67 (2025). That holding is not credible. Whatever one thinks about
the merits of Trump v. United States, everyone agrees that it represents
a significant legal development.4 Second, the panel wrongly held that
President Trump was properly denied a jury trial. The panel reasoned
that his liability for defamation for statements made in 2019 was
predetermined by a trial about different statements made in 2022. But
the jury verdict about a purported defamation in 2022 did not resolve
the question of whether he was liable for different statements made
4 See, e.g., Trump, 603 U.S. at 685 (Sotomayor, J., dissenting) (“The
relationship between the President and the people he serves has shifted
irrevocably.”).

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under different circumstances in 2019. Third, the panel upheld a
damages award that included unauthorized damages, duplicative
compensatory damages, and a grossly excessive monetary figure for
a defamation claim.
I would rehear the case en banc to bring our case law about the
scope of presidential duties and immunity into conformity with
decisions of the Supreme Court and to resolve these questions of
exceptional importance in line with the constitutional separation of
powers and normal judicial practice. See Fed. R. App. P. 40(b)(2)(B)-
(D). “In my view, the same rules should apply equally to all
defendants.” Carroll v. Trump, 141 F.4th 366, 368 (2d Cir. 2025)
(Menashi, J., dissenting from the denial of rehearing en banc).
I
Congress enacted the Westfall Act “to protect Federal
employees from personal liability for common law torts committed
within the scope of their employment.” Federal Employees Liability
Reform and Tort Compensation Act, Pub. L. No. 100-694, § 2(b),
102 Stat. 4563, 4564 (Nov. 18, 1988), codified at 28 U.S.C. § 2671 note.
The Act authorizes the Attorney General to certify “that the defendant
employee was acting within the scope of his office or employment at
the time of the incident out of which the claim arose.” 28 U.S.C.
§ 2679(d)(1)-(2). Upon such certification, two things will happen.
First, the action will be removed to federal court if it was commenced
in state court and a trial has not yet occurred. See id. § 2679(d)(2).
Second, the action “shall be deemed an action against the United
States” and “the United States shall be substituted as the party
defendant.” Id. § 2679(d)(1); id. § 2679(d)(2) (similarly providing for
substitution).

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The paradigmatic cases of substitution under the Westfall Act
are those in which a driver conducting government business
allegedly injures someone in a car accident, see, e.g., De Martinez v.
Lamagno, 515 U.S. 417, 420-21 (1995), or in which a doctor employed
by the government injures a patient through alleged malpractice, see,
e.g., Sanchez v. United States, 740 F.3d 47, 49-50 (1st Cir. 2014). The
Attorney General will certify that the driver or the doctor was acting
within the scope of his government employment when driving or
when treating patients—not that the tortious conduct itself was an
official act—and then the tort suit will proceed against the United
States. “Ordinarily, scope-of-employment certifications occasion no
contest.” De Martinez, 515 U.S. at 422.
It is a unique circumstance when this statutory framework
applies to the President of the United States. The President may be an
“employee of the government,” 28 U.S.C. § 2671, but he also “alone
composes a branch of government,” Trump v. Mazars USA, LLP,
591 U.S. 848, 868 (2020). This circumstance should make it easier to
determine that the President was acting within the scope of his office
when the purportedly tortious conduct occurred: The President,
compared to other government employees, has an especially broad
scope of office. “[T]here is not always a clear line between his personal
and official affairs,” id., because “unlike anyone else, the President is
a branch of government, and the Constitution vests in him sweeping
powers and duties,” Trump, 603 U.S. at 639-40. In this case, the
President made the allegedly defamatory statements when he issued
a press release and responded to press inquiries from the White
House. Making public statements to the press is part of the President’s
job. When the President engages in “public communications,” he
discharges “official responsibilities” and therefore acts within the

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scope of the office. Id. at 629.5 That principle is well-established with
respect to other elected officials. See CAIR v. Ballenger, 444 F.3d 659,
661 (D.C. Cir. 2006) (“In this defamation action, we consider whether
a congressman acted ‘within the scope of employment’ when he
discussed his marital status in his office, during regular business
hours, in response to a reporter’s inquiries. The District Court held
that he did, and we agree.”). Compared to the public communications
of a congressman, the President’s public comments present an easier
case because the Supreme Court has expressly said that public
communications fall within the scope of his office.
The decisions here, however, suggested that the President of
the United States has a much narrower scope of office than a
government driver or doctor. The district court rejected Attorney
General Barr’s certification on the ground that “the question of
whether government employees are acting within the scope of their
employment” must be resolved “under the respondeat superior
doctrine” of the state—or the federal district—in which the
purportedly tortious conduct occurred. Carroll v. Trump, 498
F. Supp. 3d 422, 443-44 (S.D.N.Y. 2020). The district court explained
that “the respondeat superior doctrines of New York and the District of
Columbia” provide that “respondeat superior liability does not
apply … unless the employer exercises, or has the ability to exercise,
control over the employee’s relevant actions.” Id. at 446. Because no
one “directed or controlled President Trump when he commented on
the plaintiff’s accusation,” the President “was not acting within the
5 “[A] long-recognized aspect of Presidential power is using the office’s
‘bully pulpit’ to persuade Americans, including by speaking forcefully or
critically,” and the President “is even expected to comment on those matters
of public concern that may not directly implicate the activities of the Federal
Government.” Trump, 603 U.S. at 629.

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scope of his employment when he made them, and the Attorney
General’s certification under the Westfall Act was erroneous.” Id. at
450.
That analysis was incorrect. It meant that the President acts
within the scope of his office only to the extent that he carries out the
orders of someone else. In our constitutional system, however, the
President directs executive officers rather than the other way around.6
And the head of an organization certainly can act within the scope of
his employment.7 Putting aside for the moment how bizarre it is to
determine the scope of the presidential office by reference to state
employment law rather than to the U.S. Constitution,8 the analysis of
the district court did not make sense even on its own terms. It
rendered the President’s actions within the scope of his office a null
set. That was clearly wrong; the President is the executive official with
the broadest scope of office. See Barr v. Matteo, 360 U.S. 564, 573 (1959)
(“[T]he occasions upon which the acts of the head of an executive
department will be protected by the privilege are doubtless far
6 The Constitution “establishes the President as the chief constitutional
officer of the Executive Branch, entrusted with supervisory and policy
responsibilities of utmost discretion and sensitivity. These include the
enforcement of federal law … and management of the Executive Branch.”
Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982); see also Alpine Sec. Corp. v.
FINRA, 121 F.4th 1314, 1338 (D.C. Cir. 2024) (Walker, J., concurring in the
judgment in part and dissenting in part) (“[E]xecutive power can be
exercised only by the President (accountable to the nation) and his
executive officers (accountable to him).”).
7 Cf. Perconti v. Thornton Oil Corp., No. 18630, 2002 WL 982419, at *4 (Del.
Ch. May 3, 2002) (considering whether the president and chief executive
officer of a corporation acted in his “official corporate capacity”) (alteration
omitted).
8 See infra note 17.

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broader than in the case of an officer with less sweeping functions.
But that is because the higher the post, the broader the range of
responsibilities and duties, and the wider the scope of discretion, it
entails.”).
Our court then compounded the error. We said that the scope
of the office of the President of the United States “is governed by the
District of Columbia’s respondeat superior law” but concluded that “the
District’s law regarding vicarious liability is sufficiently unclear that
we are unable to predict with any confidence how the District’s
highest court—the D.C. Court of Appeals—would resolve this issue.”
Carroll v. Trump, 49 F.4th 759, 766-67 (2d Cir. 2022). So the Second
Circuit asked the municipal D.C. court to answer the following
certified question: “Under the laws of the District, were the allegedly
libelous public statements made, during his term in office, by the
President of the United States, denying allegations of misconduct,
with regards to events prior to that term of office, within the scope of
his employment as President of the United States?” Id. at 781. In other
words, our court asked whether under the local laws of the District of
Columbia the President of the United States had acted within the
scope of his employment.
The D.C. Court of Appeals answered the question only “by
affirming that the District of Columbia generally adheres to § 228 of
the Restatement (Second) of Agency’s traditional view of the scope-
of-employment inquiry of respondeat superior, although our case
precedents construe more expansively some of the concepts set forth
therein.” Trump v. Carroll, 292 A.3d 220, 240 (D.C. 2023). For example,
the Restatement provides that “an employer is liable for an
employee’s tortious conduct in circumstances where the conduct is of
the kind the person is employed to perform,” but the law of the
District of Columbia recognizes that “[m]any employees have

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informal responsibilities that are as integral to their employment as
their formal responsibilities, and therefore are just as sound of a basis
for applying respondeat superior liability.” Id. at 230 (internal quotation
marks and alteration omitted).
This purported clarification did not clarify very much, except
perhaps to make it more obvious that the President was acting within
the scope of his office when responding to reporters at the White
House. Nevertheless, according to the panel, this trivial clarification
from a local court in D.C. provided “a new legal and factual record”
that allowed Attorney General Garland to reconsider the certification
of Attorney General Barr. Carroll v. Trump, 148 F.4th 110, 120 (2023).
Yet the panel further held that Attorney General Bondi was not
allowed to reconsider the certification of Attorney General Garland:
“The government determined that certification was not appropriate
under the respondeat superior standard as clarified by the D.C. Court
of Appeals and explicitly so advised the District Court. It cannot now
change course on appeal. The government has waived its right to
bring this belated motion.” Id. The panel made several errors by
forbidding Attorney General Bondi from making a motion under the
Westfall Act.
A
First, the waiver holding made no sense. The panel opinion said
that “our law of waiver does not permit a party to withdraw an
objection in the district court and then attempt to reassert that
objection on appeal, with the benefit of hindsight.” Carroll, 148 F.4th
at 120. But the United States has never been “a party” to this litigation,
and the Attorney General’s certification under the Westfall Act is not
an objection, pleading, or argument of a litigant. Congress enacted a
statute that authorizes the Attorney General to make a scope-of-

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employment certification, and the statute does not prohibit the
Attorney General—or a successive Attorney General—from making
a new certification based on a revised assessment of the law or the
facts. “Nothing in the [Westfall Act] contemplates anything like the
embellishment the [Second] Circuit has adopted. And it is long since
settled that a reviewing court is generally not free to impose
additional judge-made procedural requirements on agencies that
Congress has not prescribed and the Constitution does not compel.”
Garland v. Ming Dai, 593 U.S. 357, 365 (2021) (internal quotation marks
omitted).
At the same time, the panel opinion said that Attorney General
Garland—unlike Attorney General Bondi—was entitled to conclude
that “[t]he prior certification and motion to substitute have been
overtaken by events” given “the D.C. Court of Appeals’ clarification
of the standard for respondeat superior liability under D.C. law,”
such that “[t]he Attorney General should therefore be given the
opportunity to decide anew whether to certify that Mr. Trump was
acting within the scope of his office as President at the time of the
incidents out of which the plaintiff’s claim arose.” Carroll, 148 F.4th at
114 (quoting Letter, Carroll v. Trump, No. 20-CV-7311 (S.D.N.Y. June
9, 2023), ECF No. 166; Letter, Carroll v. Trump, No. 20-CV-7311
(S.D.N.Y. July 11, 2023), ECF No. 177-1).
Subsequent to Attorney General Garland’s withdrawal of the
Barr certification, however, the United States held an election in
which the government’s assessment of this sort of litigation was a
matter of public debate. 9 If the clarification of the D.C. Court of
Appeals justified a reconsideration of the government’s position, then
9 See, e.g., Jonathan Turley, Donald Trump Just Won the Greatest Jury Verdict
in American History, The Hill (Nov. 6, 2024).

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so did the election. A “changed view” of the government may be
“related to the election of a new President of a different political
party” because a “change in administration brought about by the
people casting their votes is a perfectly reasonable basis for an
executive agency’s reappraisal of the costs and benefits of its
programs.” Motor Vehicle Manufacturers Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and
dissenting in part). The Attorney General was entitled to “evaluate
priorities in light of the philosophy of the administration.” Id. There
was no principled justification for holding that Attorney General
Barr’s certification decision could be revisited by Attorney General
Garland but Attorney General Garland’s certification decision could
not be revisited by Attorney General Bondi.
The panel opinion indicated that, after Attorney General
Garland’s withdrawal of the Barr certification, President Trump
himself could have petitioned for the district court “to find and certify
that the employee was acting within the scope of his office or
employment.” 28 U.S.C. § 2679(d)(3). The panel said that “[b]y
declining to seek such relief, Trump waived his right to now bring
this motion.” Carroll, 148 F.4th at 119-20. In fact, President Trump did
seek such relief. On June 9, 2023, Attorney General Garland indicated
that the prior certification had been “overtaken by events.” Id. at 114.
On June 27, 2023, President Trump raised as an affirmative defense
that he “made the challenged statements within the scope of his
employment, and is therefore immune from suit under the Westfall
Act.” 10 Regardless, whether the employee has sought certification
10 Defendant’s Answer to Plaintiff’s First Amended Complaint,
Affirmative Defenses and Counterclaim at 22 ¶ 19, Carroll v. Trump, No. 20-
CV-7311 (S.D.N.Y. June 27, 2023), ECF No. 171.

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under § 2679(d)(3) cannot operate as a waiver of the authority of the
Attorney General to certify under § 2679(d)(1) or (d)(2).11
B
Second, the panel opinion misinterpreted the Westfall Act to
prohibit a substitution based on Attorney General Bondi’s
certification. According to the panel opinion, when a case begins in
federal court, the Attorney General may move for substitution at any
time—including after trial. When a case begins in state court,
however, the Attorney General’s motion for substitution “must be
made before trial” even if, as in this case, the trial occurred in federal
court. Carroll, 148 F.4th at 119. That differential treatment of
substitution motions by the Attorney General is arbitrary and lacks a
basis in the statute.
Pursuant to the Westfall Act, there is no time limitation on a
motion for substitution when the case begins in federal court. The
statute provides that:
Upon certification by the Attorney General that the
defendant employee was acting within the scope of his
11 Moreover, we do not normally require a litigant to make a futile motion
before a district court. See New York, N.H. & H.R. Co. v. Iannotti, 567 F.2d
166, 180 (2d Cir. 1977) (“The law does not require that one act in vain.”).
The district court had already rejected the certification of Attorney General
Barr, it treated the withdrawal of the certification by Attorney General
Garland as dispositive, and it indicated that it would not entertain further
motions on the issue after the government withdrew its certification. See
Order, Carroll v. Trump, No. 20-CV-7311 (S.D.N.Y. June 13, 2023), ECF
No. 169 (“In all the circumstances, any further submission by the United
States (including any new or amended certification and/or motion to
substitute) and/or the defendant with respect to substitution of the United
States for the defendant shall be served and filed no later than July 13,
2023.”).

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office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
commenced upon such claim in a United States district
court shall be deemed an action against the United States
under the provisions of this title and all references
thereto, and the United States shall be substituted as the
party defendant.
28 U.S.C. § 2679(d)(1). Everyone agrees that the Attorney General
may make a certification pursuant to § 2679(d)(1) and a substitution
may occur even after a trial has concluded.12 When the case begins in
a state court, however, the case may be removed to federal court only
until the trial has begun in state court:
Upon certification by the Attorney General that the
defendant employee was acting within the scope of his
office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
commenced upon such claim in a State court shall be
removed without bond at any time before trial by the Attorney
General to the district court of the United States for the district
and division embracing the place in which the action or
12 See, e.g., Sullivan v. United States, 21 F.3d 198, 205 (7th Cir. 1994) (“Section
2679(d)(1), … which applies to suits against government employees
commenced in federal court, also places no limitation on the point at which
the Attorney General must certify that the employee was acting within the
scope of his employment.”); Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994)
(“[T]he Attorney General may file a certification under § 2679(d)(1)
whenever he or she concludes that an employee defendant was acting
within the scope of his or her employment at the relevant time or times.”);
Sowell v. Am. Cyanamid Co., 888 F.2d 802, 805 (11th Cir. 1989) (“Here, the
Department of Justice has determined that Harrison was acting within the
scope of his employment, a determination which is obviously correct in
light of the testimony at trial. Therefore, it follows that the United States
should be substituted for the federal employee.”) (emphasis added).

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proceeding is pending. Such action or proceeding shall be
deemed to be an action or proceeding brought against
the United States under the provisions of this title and all
references thereto, and the United States shall be
substituted as the party defendant. This certification of
the Attorney General shall conclusively establish scope
of office or employment for purposes of removal.
28 U.S.C. § 2679(d)(2) (emphasis added). It makes sense that removal
would need to occur before trial in a state court. Otherwise, a federal
court of appeals would be reviewing state-court trial proceedings. But
the same logic does not apply to substitution, and indeed Congress
provided for substitution in a separate sentence—not modified by the
“at any time before trial” language—with language that parallels the
provision for substitution in § 2679(d)(1). “Congress does not use the
same words to accomplish the opposite objective,” Everytown for Gun
Safety Support Fund v. ATF, 984 F.3d 30, 34 (2d Cir. 2020), and there is
no reason to believe that the substitution language in the two
provisions does not have the same scope. The straightforward way to
read § 2679(d)(2) is that when the Attorney General makes a
certification, (1) the action shall be removed at any time before trial,
and (2) the United States shall be substituted as the defendant. The
statute does not say, as the panel opinion held, that any certification
must be made before trial. “Congress spoke in discrete sentences in
§ 2679(d)(2) first of removal, then of substitution.” De Martinez,
515 U.S. at 432.
The interpretation of the panel opinion is at odds with not only
the text but also the structure of the statute. “[T]o foreclose needless
shuttling of a case from one court to another,” Congress made
“certification conclusive for purposes of removal.” Id. at 433 n.10
(internal quotation marks and alterations omitted). That means that
§ 2679(d)(2) authorizes two different steps: (1) removal, which is

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automatic and conclusive, and (2) substitution, which occasions
further judicial review. The panel itself emphasized that
“[c]ertification is conclusive for purposes of the removal to federal
court, but the question of substitution is subject to judicial review.”
Carroll, 148 F.4th at 113. Given this two-step process, there is no reason
to expect removal and substitution to occur simultaneously or even
to result from the same certification decision. This very case was
removed to federal court—where the trial occurred—because
Attorney General Barr’s certification was conclusive for purposes of
removal. But the United States was not substituted as the defendant
because Attorney General Garland later decided not to certify for
purposes of substitution. The panel insisted that because “removal
must be accomplished before trial” it follows that “the certification
must be made before trial, too.” Id. at 116. But that conclusion does
not follow because—as this case illustrates—the removal and the
substitution may occur at different times and be governed by
different certifications.
The panel opinion insisted that its counterintuitive reading
found support in the “broader role and purpose of the Westfall Act,”
which it defined narrowly as “supplant[ing] the jury in covered cases
because FTCA cases are subject to bench trials.” Id. at 117 (internal
quotation marks omitted). “Logically,” it said, the substitution “must
occur prior to trial” because “[s]upplanting the jury as factfinder has
little utility in a case, like this one, that has already been tried to a
jury.” Id. But in the enacted statement of purpose, Congress said that
the purpose of the Westfall Act is “to protect Federal employees from
personal liability for common law torts committed within the scope
of their employment” based on the congressional finding that “[t]he
prospect of such liability will seriously undermine the morale and
well being of Federal employees, impede the ability of agencies to

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carry out their missions, and diminish the vitality of the Federal Tort
Claims Act as the proper remedy for Federal employee torts.”
102 Stat. at 4563-64. The need to protect federal employees does not
disappear—and might become more urgent—once a trial has
occurred. That is why § 2679(d)(1) does not require that a motion for
substitution be made only before trial, and it is why § 2679(d)(2) does
not logically do so either. It would undermine the congressional
purpose if the plaintiff’s mere election to file a complaint in state
rather than federal court would restrict the ability of the United States
to provide a defense.
The panel opinion also created a circuit split. The D.C. Circuit
has held that when a case is timely removed to federal court, a new
case is “commenced” in the district court that allows “the United
States to substitute itself for [the federal employee defendant]
pursuant to 28 U.S.C. § 2679(d)(1).” Wasserman v. Rodacker, 557 F.3d
635, 639 (D.C. Cir. 2009). The D.C. Circuit explained that “[w]hile any
case removed from a state court necessarily originated outside of
district court, its removal creates a federal civil case … with a
procedural beginning and end. … According to the applicable rules
of civil procedure, [the federal] action commenced in the district court
when removal was effected and the complaint was received by the
clerk.” Id. (citing Fed. R. Civ. P. 3, 5(d)(2)). As a result, “§ 2679(d)(1)
applies” to the removed action and that provision “allows the United
States to replace [the federal employee] as the party defendant to the
tort claims.” Id. Under that rule, § 2679(d)(1) would apply to this

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16
removed case and there would indisputably be no time limitation on
the ability of the United States to move for substitution.13
It is unsustainable for the availability of Westfall Act
substitution to depend on whether the case ends up in the D.C. Circuit
or the Second Circuit. The panel might quibble over the details of
decisions of the D.C. Circuit and other circuits applying the Westfall
Act. But this case either would have come out differently in the D.C.
Circuit or would have come out differently in the other circuits if
President Trump had simply removed the case on the basis of
diversity before the United States moved for substitution. See
Wasserman, 557 F.3d at 639; Flohr, 84 F.3d at 388 n.4; Melo, 912 F.2d at
640 n.15. If the circuit courts would reach different outcomes on the
same facts, there is a split. I would rehear this case en banc to reach a
result that is consistent with rather than contrary to the interpretation
of the Westfall Act that prevails in the other circuits.
C
Third, the panel opinion invoked these procedural and
statutory obstacles to avoid facing the fact that the certifications of
Attorneys General Barr and Bondi were correct. When a court
13 The Eleventh Circuit has also said that § 2679(d)(1) “governs not only
actions that are ‘commenced’ in district court (under any statute giving the
court subject matter jurisdiction to hear the case) but also any case properly
removed to district court.” Flohr v. Mackovjak, 84 F.3d 386, 388 n.4 (11th Cir.
1996). It qualified the statement by saying that the removal must be “under
a removal statute other than 28 U.S.C. § 2679(d),” but that would mean
President Trump could have removed this case on the basis of diversity and
then the United States could have obtained substitution. Id.; see also Melo v.
Hafer, 912 F.2d 628, 640 n.15 (3d Cir. 1990) (allowing certification under
§ 2679(d)(1) after the employee “removed the action pursuant to other
provisions of the United States Code”).

-- 19 of 91 --

17
considers a Westfall Act certification that a driver or doctor was acting
within the scope of federal employment, the question is whether the
driver was driving on government business or the doctor was treating
patients as part of his federal employment. It is not whether the
government employment specifically required him to hit a pedestrian
or to injure a patient. As the Westfall Act puts it, the certification is
that “the defendant employee was acting within the scope of his office
or employment at the time of the incident out of which the claim
arose.” 28 U.S.C. § 2679(d)(1)-(2). The overall conduct, not the
incident itself, must be within the scope of the office or employment.
See Ballenger, 444 F.3d at 664 (explaining that a focus on whether the
“allegedly defamatory statement itself was not conduct of the kind he
is employed to perform” reflects “a misunderstanding of D.C. scope-
of-employment law (not to mention the plain text of the Westfall Act),
which directs courts to look beyond alleged intentional torts
themselves”).14
As a result—even assuming that the conventional framework
applicable to drivers and doctors applies to the President of the
United States—the question here is whether it is within the scope of
the President’s office to issue press releases or to respond to press
inquiries. That is not a difficult question. “It is ‘incontestable’ that the
Presidency comes with the power to use the office’s ‘bully pulpit.’”
14 It would render the applicable case law incoherent to focus on whether
the allegedly tortious conduct itself was part of the employee’s duties. See,
e.g., Johnson v. Weinberg, 434 A.2d 404, 409 (D.C. 1981) (concluding that a
reasonable jury could find that a laundromat employee acted within the
scope of his employment when he shot a customer during a dispute over
missing shirts); Lyon v. Carey, 533 F.2d 649, 652 (D.C. Cir. 1976) (concluding
that a jury reasonably found that a mattress deliveryman acted within the
scope of his employment when he assaulted and raped a customer
following a delivery-related dispute).

-- 20 of 91 --

18
Associated Press v. Budowich, No. 25-5109, 2025 WL 1649265, at *12
(D.C. Cir. June 6, 2025) (quoting Blassingame v. Trump, 87 F.4th 1, 14-
15 (D.C. Cir. 2023)). When the President engages in “public
communications,” he is discharging “official responsibilities” and
acting within the scope of his office. Trump, 603 U.S. at 629.15
The D.C. Circuit has held that “[s]peaking to the press during
regular work hours in response to a reporter’s inquiry falls within the
scope of a congressman’s ‘authorized duties.’” Ballenger, 444 F.3d
at 664. For that reason, even a statement the congressman made
during the conversation that “elaborated on the reasons why he and
his wife had separated” fell within the scope of his office. Id. at 662.
For a defamation claim based on such a remark, “the proper
defendant under the Westfall Act is the United States.” Id. at 666.
In this case, the district court rejected the notion that the
President’s remarks to the press could fall within the scope of his
office because the President does not have an employer at whose
behest he makes the remarks. See Carroll, 498 F. Supp. 3d at 449-50.
But the D.C. Circuit had no problem concluding that the
congressman’s remarks—even about his personal affairs—were
“actuated, even in part, to serve the master” because “even a partial
desire to serve the master is sufficient,” and the congressman “wanted
to maintain the continued trust and respect of his constituents in
order to preserve his ability to carry out his legislative
15 See also Wilson v. Libby, 535 F.3d 697, 712 (D.C. Cir. 2008) (explaining that
executive branch officials who “spoke to the press” to address “criticism of
the Executive’s handling of pre-war intelligence” engaged in conduct “of
the type that the defendants were employed to perform” and therefore the
conduct “was in the defendants’ scope of employment regardless of
whether it was unlawful or contrary to the national security of the United
States”).

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19
responsibilities.” Ballenger, 444 F.3d at 665 (internal quotation marks
and alterations omitted). The D.C. Circuit recognized that the
congressman’s “conduct was motivated—at least in part—by a
legitimate desire to discharge his duty as a congressman.” Id.
President Trump explained that he made the remarks giving rise to
this case for similar reasons: “I just wanted to defend myself, my
family, and frankly, the presidency.” App’x 2109.
The Fifth Circuit has also decided that a congressman’s
“statements, including the alleged defamatory remarks and even
assuming such remarks are defamatory, [which] were made in the
context of an interview addressing [matters of public concern], clearly
fell within the course and scope of his position as a Member of
Congress.” Williams v. United States, 71 F.3d 502, 507 (5th Cir. 1995).
The Sixth Circuit has decided that legislators’ social media posts
describing high school students as exemplifying “blatant hate” and a
lack of “common decency” were “calculated to serve the interests of
Defendants’ constituents (i.e., employers) by informing them of
Defendants’ views.” Does 1-10 v. Haaland, 973 F.3d 591, 594, 602 (6th
Cir. 2020). And the Third Circuit has held that commissioners of the
United States Semiquincentennial Commission acted within the scope
of their employment when allegedly “engaging in a campaign of libel,
slander, and smearing” that involved statements made “in
interactions with the press.” Giordano v. Hohns, 159 F.4th 179, 183, 201
(3d Cir. 2025) (alteration omitted). Other courts have reached similar
conclusions.16 The decision in this case—regarding the President of
the United States—stands alone on the other side.
16 See Musgrave v. Mace, No. 25-1823, 2025 WL 4482991, at *2 (D.S.C. Aug.
20, 2025) (noting that the federal courts “have consistently held that

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20
The Attorney General’s certification “constitute[s] prima facie
evidence that the employee was acting within the scope of his
employment,” Ballenger, 444 F.3d at 662, and a “plaintiff challenging
the government’s scope-of-employment certification bears the
burden of coming forward with specific facts rebutting the
certification,” id. (quoting Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir.
2003)). The plaintiff in this case cannot meet that burden.
It is strange to think that the scope of the office of President of
the United States should be decided by reference to state employment
law, and the Supreme Court may want to consider whether that is
how the Westfall Act applies to the President.17 But even under the
statements made to the press and on social media are within the scope of
employment of members of Congress” and “have reasoned that press
interviews are part of a congressperson’s job”); see also Chapman v. Rahall,
399 F. Supp. 2d 711, 715 (W.D. Va. 2005) (explaining that a congressman’s
“remarks, made to the media to ensure his effectiveness as a legislator, can
fairly and reasonably be deemed to be an ordinary and natural incident or
attribute of his job as a legislator” and “were therefore made within the
scope of his employment”) (internal quotation marks omitted); Operation
Rescue Nat’l v. United States, 975 F. Supp. 92, 108-09 (D. Mass. 1997)
(explaining that by making remarks “in response to questions posed by the
media,” a senator “was providing political leadership and a basis for voters
to judge his performance in office” and “the Westfall Act provides Senator
Kennedy immunity for his remarks”), aff’d, 147 F.3d 68 (1st Cir. 1998).
17 Cf. Trump, 603 U.S. at 639-40 (“[U]nlike anyone else, the President is a
branch of government, and the Constitution vests in him sweeping powers
and duties.”); Nixon, 457 U.S. at 756 (“Under the Constitution and laws of
the United States the President has discretionary responsibilities in a broad
variety of areas, many of them highly sensitive. In many cases it would be
difficult to determine which of the President’s innumerable ‘functions’
encompassed a particular action.”); Trump v. Vance, 591 U.S. 786, 800-01
(2020) (“[T]he Constitution guarantees ‘the entire independence of the

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21
framework that applies to other government employees, the motion
of the United States for substitution should have been granted. I
would rehear the case en banc and grant the motion for substitution.
II
As noted above, the panel in this case determined that the
“clarification” of respondeat superior liability by the D.C. Court of
Appeals created a “new legal and factual record” that allowed
Attorney General Garland to submit a new certification decision in
place of the prior certification by Attorney General Barr. Carroll,
148 F.4th at 120. But when it came to the merits, the same panel
determined that the clarification of the doctrine of presidential
immunity by the Supreme Court of the United States in Trump v.
United States was so inconsequential that President Trump should not
be allowed to revisit that issue. “Trump did not announce new law
when it observed that presidential immunity is rooted in the
structural separation of powers,” the panel said. “It simply reaffirmed
long-established principles.” Carroll, 151 F.4th at 67. According to the
panel, Trump v. United States provided no intervening change in law
that would allow the President to make an argument about
presidential immunity that he could not have raised earlier. See id. So
the panel decided that it would not reconsider the issue of
presidential immunity or its prior determination that President
Trump had waived his immunity defense. See id. at 65-68.
General Government from any control by the respective States.’ As we have
often repeated, ‘States have no power to retard, impede, burden, or in any
manner control the operations of the constitutional laws enacted by
Congress.’ It follows that States also lack the power to impede the
President’s execution of those laws.”) (citations and alteration omitted)
(quoting Farmers’ & Mechanics’ Sav. Bank v. Minnesota, 232 U.S. 516,
521 (1914); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819)).

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22
In fact, the prior determination that President Trump waived
the defense was incorrect. But even if he had waived it, the claim that
Trump v. United States provided no meaningful clarification about the
scope of presidential immunity is wrong. If there is one thing on
which the proponents and the critics of Trump v. United States agree,
it is that the decision made a difference to the law of presidential
immunity. Another panel of our court has vacated and remanded the
decision of a district court because that court did “not appear to have
adequately considered whether Trump v. United States represented a
change in controlling law.” New York v. Trump, 158 F.4th 458, 466 (2d
Cir. 2025). At least that much should have occurred here.
A
There was no waiver of the immunity defense. President
Trump consistently raised the defense of presidential immunity
throughout this litigation. He did so in his initial answer to the
complaint,18 a motion for summary judgment,19 a motion to amend
the answer to raise presidential immunity more specifically if
18 See Answer at 11 ¶ 149, Carroll v. Trump, No. 20-CV-7311 (S.D.N.Y. Sept.
15, 2020), ECF No. 14-69 (“The alleged defamatory statements are
privileged or protected by one or more immunities … under the
Constitution of the United States.”).
19 See Memorandum in Support of Defendant’s Motion for Summary
Judgment at 3-4, Carroll v. Trump, No. 20-CV-7311 (S.D.N.Y. Dec. 22, 2022),
ECF No. 109 (“It is blackletter law that a President is entitled to absolute
immunity from damages liability predicated on his official
acts. … Presidential immunity serves a vital function for the office of the
presidency.”) (internal quotation marks omitted); id. at 19 (“[I]n accordance
with long-established Supreme Court precedent, Defendant is entitled to
absolute immunity from damages liability.”) (internal quotation marks
omitted).

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23
necessary,20 an answer to the amended complaint,21 and his appeal.22
The Supreme Court has explained that to the extent that legislative
immunity may be waived, “waiver can be found only after explicit
and unequivocal renunciation of the protection.” United States v.
Helstoski, 442 U.S. 477, 491 (1979). The Court emphasized that “[t]he
ordinary rules for determining the appropriate standard of waiver do
not apply” to an immunity designed “to preserve the constitutional
structure of separate, coequal, and independent branches of
government.” Id. Like legislative immunity, presidential “immunity
from damages liability predicated on his official acts” is “rooted in the
constitutional tradition of the separation of powers.” Nixon, 457 U.S.
at 749. There is no reason to conclude that the waiver of presidential
immunity may be any less explicit and unequivocal than the
legislative analogue.
In this case, however, the Second Circuit held that presidential
immunity may be waived unintentionally through inadvertence. Our
20 See Reply Memorandum of Law in Further Support of Defendant’s
Motion for Summary Judgment at 5, Carroll v. Trump, No. 20-CV-7311
(S.D.N.Y. Jan. 19, 2023), ECF No. 122 (“[S]hould this Court accept Plaintiff’s
position regarding waiver, Defendant should be permitted to assert
presidential immunity as a defense in the interest of justice.”); see also
Carroll, 680 F. Supp. 3d at 504 (“In the alternative, Mr. Trump argues that
the Court should construe his motion for summary judgment as a motion
for leave to amend his answer to resurrect the previously waived absolute
presidential immunity defense.”).
21 See Defendant’s Answer to Plaintiff’s First Amended Complaint, supra
note 10, at 20-21 ¶ 1 (“[T]he alleged defamatory statements are privileged
and protected under the doctrine of presidential absolute immunity.”).
22 See Brief for Appellant at 7, Carroll v. Trump, No. 24-644 (2d Cir. Sept. 20,
2024), ECF No. 51.1 (“[T]he doctrine of absolute Presidential immunity bars
any liability.”).

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24
court held that the reference to constitutional immunity in the
President’s initial answer was too general to invoke presidential
immunity, and the President “unduly delayed in raising presidential
immunity as a defense” in a more specific filing. Carroll v. Trump
(Carroll 3), 88 F.4th 418, 429-30 (2d Cir. 2023). The panel opinion
adhered to that decision on two grounds. First, the panel concluded
that there has been no “intervening change of law” on presidential
immunity. Carroll, 151 F.4th at 68. Second, the panel concluded that
“[e]ven assuming a waiver of presidential immunity must be ‘explicit
and unequivocal,’ surely Trump’s concession in Carroll 3—that if
presidential immunity were waivable, he waived it—meets this
standard.” Id. at 68 n.12.
By making that second point, the panel opinion relied on a
statement of counsel at oral argument in the Carroll 3 appeal. In
response to questioning, counsel for President Trump accepted the
counterfactual premises of the question that (1) presidential
immunity is subject to ordinary waiver rules applicable to any
defense, (2) President Trump was properly denied leave to amend his
answer to specify the defense of presidential immunity rather than
constitutional immunities generally, and (3) no amended complaint
was ever filed such that President Trump never filed a new answer in
response. Based on those premises, counsel answered that the
statement in President Trump’s initial answer might have been too
general for presidential immunity to have been “properly raised at
that point.”23 Counsel immediately added, however, that “given the
23 Oral Argument Audio Recording at 10:30, Carroll v. Trump, No. 23-1045
(2d Cir. Oct. 23, 2023).

-- 27 of 91 --

25
filing of the amended complaint,” the defense “was properly raised”
even under ordinary waiver rules.24
That exchange during oral argument in no way established an
“explicit and unequivocal renunciation of the protection” of
presidential immunity. Helstoski, 442 U.S. at 491. The premise of the
question was that the ordinary rules allowing waiver by inadvertence
or oversight would apply in this context. But “[t]he ordinary rules for
determining the appropriate standard of waiver do not apply.” Id.
The panel in Carroll 3 did not believe that anything said at oral
argument qualified as an intentional renunciation of presidential
immunity. The Carroll 3 opinion expressly stated that “we express no
view on whether Defendant intended to relinquish his presidential
immunity defense.” Carroll 3, 88 F.4th at 422 n.1. The panel opinion in
this case erred by treating the counterfactual statement of counsel at
oral argument as an explicit and unequivocal renunciation of
presidential immunity. It was not.
B
The most glaring error of the panel opinion, however, was its
dismissal of Trump v. United States as too insignificant to justify
reconsideration of the application of presidential immunity to this
case. Everyone except for the panel in this appeal believes that Trump
v. United States materially affected the law of presidential immunity.25
24 Id.
25 See, e.g., Trump, 603 U.S. at 657 (Sotomayor, J., dissenting) (arguing that
the decision “reshapes the institution of the Presidency”); Saikrishna
Bangalore Prakash, The Fearless Executive, Crime, and the Separation of Powers,
111 Va. L. Rev. 1, 4 (2025) (explaining that “[i]n Trump v. United States, the
Supreme Court supplied some answers” to “profound questions about the
nature of our government” and effected “a bestowal of a capacious

-- 28 of 91 --

26
By “[e]xplaining only that nothing in the Supreme Court’s opinion
affects the previous conclusion” about “the bounds of executive
authority,” the panel opinion “bypassed what we consider to be
important issues bearing on the ultimate issue” of presidential
immunity. Trump, 158 F.4th at 469 (internal quotation marks and
alterations omitted).
The Supreme Court in Trump v. United States recognized that
“only a limited number of our prior decisions guide determination of
the President’s immunity.” 603 U.S. at 610. It therefore provided
important clarifications. The President has immunity for “official
actions” but not “unofficial ones.” Id. at 617. Yet “some Presidential
conduct—for example, speaking to and on behalf of the American
people—certainly can qualify as official even when not obviously
connected to a particular constitutional or statutory provision,” so
presidential immunity “extends to the ‘outer perimeter’ of the
President’s official responsibilities, covering actions so long as they
are ‘not manifestly or palpably beyond his authority.’” Id. at 618
(citation and alteration omitted) (quoting Blassingame, 87 F.4th at 13).
immunity”); Robert Delahunty & John Yoo, The Presidential Immunity
Decision, 2024 Harv. J.L. & Pub. Pol’y Per Curiam 34, at *1 (2024) (“In Trump
v. United States, the Supreme Court issued one of the most resounding
defenses of executive power in its history.”) (footnote omitted); Shalev Gad
Roisman, Trump v. United States and the Separation of Powers,
173 U. Pa. L. Rev. Online 33, 33 (2025) (“Trump v. United States is a
blockbuster decision that has been reviled and celebrated by different
quarters of American society.”); Jack Goldsmith, The Presidency After Trump
v. United States, 2024 Sup. Ct. Rev. 1, 3 (2024) (noting “the novelty in these
rulings and their potentially very broad implications”); Akhil Reed Amar,
Something Has Gone Deeply Wrong at the Supreme Court, The Atlantic (July 2,
2024); Laurence H. Tribe, The Trump Decision Reveals Deep Rot in the System,
N.Y. Times (July 1, 2024).

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27
And the immunity prevents not only liability for official acts but also
the use of evidence of official acts even when the jury is ultimately
asked to evaluate “charges that purport to be based only on his
unofficial conduct.” Id. at 631. In that way, the immunity is implicated
whenever the “President’s immune conduct” is subjected to
“examination by a jury.” Id. The government in Trump believed that
it could introduce evidence of official acts, but the Supreme Court
explained that the government’s “proposal threatens to eviscerate the
immunity we have recognized” and that “[i]t would permit a
prosecutor to do indirectly what he cannot do directly—invite the
jury to examine acts for which a President is immune.” Id.
The panel in this case decided that when “the D.C. Court of
Appeals clarified the standard for respondeat superior liability,” the
new legal landscape justified the reconsideration of earlier decisions
regarding the scope of the presidential office. Carroll, 148 F.4th at 119.
It would seem to follow from that premise that when the Supreme
Court clarified the scope of presidential immunity, the new legal
landscape likewise justified the reconsideration of earlier decisions
about the defense of presidential immunity. But the panel insisted
that it did not. See Carroll, 151 F.4th at 68 (“In the absence of any
intervening change of law on this issue, adhering to our prior decision
would not work a manifest injustice.”). That was wrong. Indeed, a
subsequent panel of our court has recognized that it was wrong. See
Trump, 158 F.4th at 466 (concluding that a district court “does not
appear to have adequately considered whether Trump v. United States
represented a change in controlling law”).26
26 The panel opinion suggested that the relevant question might be whether
Trump v. United States represented an intervening change in law on the

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28
The decision in Trump v. United States makes clear that
President Trump has a serious claim that the district court conducted
the trial in this case in violation of presidential immunity. The
Supreme Court explained that “most of a President’s public
communications are likely to fall comfortably within the outer
perimeter of his official responsibilities.” Trump, 603 U.S. at 629. To
the extent that a public communication would fall outside those
responsibilities, it would be because there may “be contexts in which
specific issue of “whether presidential immunity could be waived or
forfeited.” Carroll, 151 F.4th at 66. That is not the relevant question. When
an intervening change in law alters the availability of a claim or a defense,
an earlier failure to invoke that claim or defense cannot operate as a waiver.
“[T]he mere failure to interpose such a defense prior to the announcement
of a decision which might support it cannot prevent a litigant from later
invoking such a ground” because “an effective waiver must … be one of a
‘known right or privilege.’” Curtis Pub. Co. v. Butts, 388 U.S. 130, 143 (1967)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). If Trump v. United States
authorized a broader defense of presidential immunity than was previously
available, the President cannot be said to have waived that defense by
failing to raise it before Trump v. United States was decided. Just as Trump v.
United States did not specifically address the issue of waiver, it did not
address what qualifies as “good cause” for a delay in filing a notice of
removal under 28 U.S.C. § 1455(b)(1). But our court held that a district court
did “not appear to have adequately considered whether Trump v. United
States represented a change in controlling law that could support a finding
of good cause.” Trump, 158 F.4th at 466-67. The decision in Trump v. United
States could support a finding of good cause because it altered the scope of
presidential immunity—and therefore provided broader grounds for
removal than were previously available. The principle is that a defendant
cannot be faulted for failing to raise a ground for removal that was not
previously available. In this case, the decision in Trump v. United States
provided a broader defense of presidential immunity than was previously
available, but the panel opinion faulted the President for failing to raise a
defense based on that decision before the decision was issued.

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29
the President, notwithstanding the prominence of his position, speaks
in an unofficial capacity—perhaps as a candidate for office or party
leader.” Id. To distinguish those contexts, a court must engage in “the
classification of each communication” based on, for example, “who
was involved in transmitting the electronic communications” or
“what else was said contemporaneous to the excerpted
communications.” Id. at 630. This is a “fact specific” inquiry that
entails an “objective analysis of ‘content, form, and context,’” id. at
629 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)), and a
recognition that “there is not always a clear line between the
President’s personal and official affairs,” id. (alteration omitted)
(quoting Mazars, 591 U.S. at 868).
Neither the district court nor our court engaged in the
contextual analysis that the Supreme Court has said is required.
Instead, the district court said that a “comment about government
action, public policy, or even an election is categorically different than
a comment about an alleged sexual assault that took place roughly
twenty years before the president took office.” Carroll, 498 F. Supp. 3d
at 453. According to the district court, such a comment can never be
said in an official capacity because “President Trump’s views on the
plaintiff’s sexual assault allegation may be interesting to some, but
they reveal nothing about the operation of government.” Id. The
Supreme Court, however, has explained that the President is
“expected to comment on those matters of public concern that may
not directly implicate the activities of the Federal Government.”
Trump, 603 U.S. at 629. His “speaking to and on behalf of the
American people certainly can qualify as official even when not
obviously connected to a particular constitutional or statutory
provision,” id. at 618 (citation omitted), and “even when no specific
federal responsibility requires his communication,” id. at 627.

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30
At a minimum, the President should be able to argue that the
newly clarified doctrine of presidential immunity precludes liability
in this case. The district court performed an acontextual and
unpersuasive analysis, and the Second Circuit refused even to
consider the arguments. It cannot be said that the same arguments
were previously available. Cf. In re Vivendi, S.A. Sec. Litig., 838 F.3d
223, 243 (2d Cir. 2016) (“[T]he intervening authority must have
established an argument that was ‘not known to be available’ to the
party seeking to excuse waiver at the first opportunity that the party
had to raise the argument.”) (quoting Gucci Am., Inc. v. Weixing Li, 768
F.3d 122, 135 (2d Cir. 2014)). The decision in Trump v. United States
allowed the President to argue that his “public communications” fall
“within the outer perimeter of his official responsibilities” even
“when no specific federal responsibility requires his communication.”
Trump, 603 U.S. at 627-29. And it allowed him to argue that he has a
defense of presidential immunity based on the use of evidence of such
official acts regardless of the ultimate reason for liability. 27 The
27 Compare Trump, 603 U.S. at 631 (“If official conduct for which the
President is immune may be scrutinized to help secure his conviction, even
on charges that purport to be based only on his unofficial conduct, the
intended effect of immunity would be defeated. … Use of evidence about
such conduct, even when an indictment alleges only unofficial conduct,
would thereby heighten the prospect that the President’s official
decisionmaking will be distorted.”) (internal quotation marks omitted),
with United States v. Nixon, 418 U.S. 683, 709 (1974) (“[I]t is imperative to the
function of courts that compulsory process be available for the production
of evidence needed either by the prosecution or by the defense.”); Trump,
603 U.S. at 656 (Barrett, J., concurring in part) (“[T]he rules of evidence are
equipped to handle that concern on a case-by-case basis. … I see no need to
depart from that familiar and time-tested procedure here.”); id. at 681
(Sotomayor, J., dissenting) (arguing that the majority’s “draconian

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31
intervening change in law that supported these arguments—not some
development in waiver doctrine—required reconsideration of the
presidential immunity defenses. See supra note 26.
President Trump raises strong arguments based on Trump v.
United States. The jury in this case imposed liability for statements
made in a press release from the White House Press Office 28 and
made by the President in a press briefing on the south lawn of the
White House.29 The officials and entities involved in distributing the
statements—as well as the context, involving direct inquiries to the
White House and other comments on matters of public policy—
indicate that the President was speaking in an official capacity. Even
if he were not, the records of the statements—documents issued from
the White House Press Office—appear to be evidence of official acts.
At the trial, counsel for Carroll emphasized the official
character of the statements as evidence of the harm Carroll had
suffered. In her opening statement, counsel said that the President
was “[s]peaking from the White House” and “used the most famous
platform on earth to lie about what he had done.” App’x 1100. “He
said these things from the White House. The White House, a place
where presidents have signed laws, declared wars, decided the fate
of the nation.” Id. In her summation, she said that the President had
“attacked her integrity and her honesty” while “[w]ielding his
position as president.” Id. at 1781. Carroll’s complaint alleged that
“the most powerful man on the planet” used “that platform” of the
presidency “to attack her integrity.” Id. at 71-72. She won summary
approach to official-acts evidence” is “extraordinary” and “has no basis in
law”).
28 App’x 1887; see https://perma.cc/K8LC-TWBG.
29 App’x 584-96; see https://perma.cc/3A8E-V97R.

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judgment on the ground that the “statements, especially when issued by
the sitting President and broadcast widely, would inevitably tend to
expose Ms. Carroll to hatred and contempt or to induce an unsavory
opinion of her in the minds of a substantial number of people in the
community.”30
These statements indicate that the jury was invited to scrutinize
and to punish official acts of the President.31 But no court has even
considered that question. At the very least, the President is entitled to
have a court evaluate whether and to what extent this trial implicated
presidential immunity as the Supreme Court elaborated the doctrine
in Trump v. United States. The panel opinion refused to conduct any
analysis on the application of presidential immunity. I would rehear
the case en banc in order to do so.
C
The President was denied a fair trial in yet another respect. The
district court imposed a judgment of $87 million in damages for
allegedly defamatory statements that President Trump made to
reporters at the White House in June 2019. But the district court
decided that President Trump was not even entitled to a trial on
30 Carroll v. Trump, 690 F. Supp. 3d 396, 405 (S.D.N.Y. 2023) (alteration
omitted) (emphasis added) (quoting Memorandum of Law in Support of
Plaintiff’s Motion for Partial Summary Judgment at 17, Carroll v. Trump,
No. 20-CV-7311 (S.D.N.Y. Aug. 2, 2023), ECF No. 190).
31 See Carroll v. Trump, 731 F. Supp. 3d 626, 634-35 (S.D.N.Y. 2024)
(upholding the award of punitive damages because “there was evidence
that Mr. Trump used the office of the presidency—the loudest ‘bully pulpit’
in America and possibly the world—to issue multiple statements
castigating Ms. Carroll” and because “[t]he jury could have found that
Mr. Trump wielded his position as arguably the most powerful and famous
man in the world to broadcast his lies to millions of dedicated followers”).

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whether those statements were defamatory or spoken with actual
malice. It denied him that trial because the district court had held a
separate trial over whether different statements made via social
media in October 2022 were defamatory and spoken with actual
malice. Because of that other trial concerning the 2022 statements, the
district court “ruled that Trump was barred from
disputing … whether his June 2019 statements were false or
defamatory, and whether he acted with actual malice in making those
statements.” Carroll, 151 F.4th at 64. The district court instructed the
jury that the President was guilty of defamation for the 2019
statements and held a trial limited to how much he should be required
to pay in damages. The jury returned a record-setting damages
award.
That is not how trials are supposed to work. Even putting aside
the problems with the first trial, 32 that trial at most could have
established that the 2022 statements were defamatory and said with
actual malice. The district court nevertheless concluded that the
“truth or falsity of Mr. Trump’s 2019 statements” depends “on
whether Ms. Carroll lied about Mr. Trump sexually assaulting her,”
so “[t]he jury’s finding that she did not therefore is binding in this
case and precludes Mr. Trump from contesting the falsity of his 2019
statements.” Carroll, 690 F. Supp. 3d at 406. But the jury did not make
32 The district court in the first trial unjustifiably excluded evidence of
President Trump’s state of mind, allowed the introduction of propensity
evidence to establish liability, and overrode the mandate of Rule 403 to
exclude stale witness testimony. “The result was a jury verdict based on
impermissible character evidence and few reliable facts. No one can have
any confidence that the jury would have returned the same verdict if the
normal rules of evidence had been applied.” Carroll, 141 F.4th at 386
(Menashi, J., dissenting from the denial of rehearing en banc).

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that finding. The accusation to which President Trump responded in
2019 was the publication of “an excerpt from Ms. Carroll’s then-
forthcoming book, in which Ms. Carroll wrote that Mr. Trump raped
her.” Carroll v. Trump, 124 F.4th 140, 151 (2d Cir. 2024). The jury in the
first trial concluded that President Trump did not rape her. As the
panel opinion recounts, “[t]he jury answered the first question [on the
special verdict form]—whether Trump raped Carroll—in the
negative.” Carroll, 151 F.4th at 70. The jury found President Trump
liable only for sexual abuse, and both the district court and our court
“acknowledged that the jury could conceivably have found that
Trump sexually abused Carroll only through nonconsensual kissing
or pulling down her tights.” Id.
But the district court, on its own, determined “that such a
finding would be inconsistent with the jury’s $2 million
compensatory damages award.” Id. So the district court decided that
“the jury implicitly found[] that Mr. Trump deliberately and forcibly
penetrated Ms. Carroll’s vagina with his fingers.” Carroll v. Trump,
683 F. Supp. 3d 302, 307 (S.D.N.Y. 2023) (emphasis added). In the
second trial, therefore, “[t]he district court told the jury that it must
accept as true that ‘Mr. Trump sexually abused Ms. Carroll by
forcibly inserting his fingers into her vagina without her consent.’”
Carroll, 151 F.4th at 69 (quoting App’x 1851). No jury ever made that
finding—and, more important, a similar chain of inferences from the
verdict could as easily lead to the conclusion that the initial jury
determined that Carroll was not telling the truth about being raped
because that jury determined that she was not raped.
The panel opinion defended the decision of the district court to
deny President Trump a trial as an application of Rule 49(a) of the
Federal Rules of Civil Procedure. According to the panel opinion,
because the special verdict form in the first trial “did not request the

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jury to make a finding on the specific sexual conduct that he
committed,” when following trial President Trump argued “that the
damages were excessive because the jury could have found that he
had engaged in less serious sexual acts, the district court made a
finding on this issue.” Carroll, 151 F.4th at 70 (citation omitted). And
its finding was “entitled to preclusive effect” in the second
defamation case. Id. at 71.
It is true that following the first trial the district court needed to
resolve a motion for “a new trial or remittitur” based on the damages
award. Carroll, 683 F. Supp. 3d at 324. But no court has ever given
preclusive effect to a Rule 49(a) finding made to resolve a remittitur
motion. That is because Rule 49(a) has no application under these
circumstances. Rule 49(a) “was designed to have the court supply an
omitted subsidiary finding which would complete the jury’s
determination or verdict.” Kinnel v. Mid-Atl. Mausoleums, Inc., 850
F.2d 958, 965 (3d Cir. 1988); see Kerman v. City of New York, 374 F.3d 93,
120 (2d Cir. 2004) (“Rule 49 permits the trial court, in some
circumstances, to supply an omitted finding that would complete a
jury’s verdict.”) (emphasis added). When, for example, “no individual
elements of a misrepresentation cause of action were specifically
framed for the jury to answer, … the district court could ‘fill in’ those
subsidiary elements when the jury returned a verdict” finding that
the defendant committed misrepresentation. Kinnel, 850 F.2d at 965.
“Subsumed within that ultimate jury finding were the five elements
of misrepresentation … each of which could be deemed to have been
supplied by the court in accordance with the jury’s judgment once the
jury’s ultimate verdict was known.” Id. at 965-66.
In this case, the district court did not make its finding to
complete the jury’s verdict. When President Trump made the motion
for remittitur, the verdict was already complete. No inferences were

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36
necessary. “Remittitur is ‘the process by which a court compels a
plaintiff to choose between reduction of an excessive verdict and a
new trial.’” Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 258 (2d Cir.
2005) (quoting Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir.
1990)). To determine whether remittitur is appropriate, “a district
court reviews the evidence presented at trial in support of the
challenged damage award and compares the award to other New
York cases in which evidence of similar injuries was presented.”
Presley v. USPS, 317 F.3d 167, 173 (2d Cir. 2003). That involves a
comparison of the evidentiary records in comparable cases.33 But it
does not involve entering new factual findings on behalf of the jury
under Rule 49(a). No such findings would be subsidiary to a jury
verdict. And because remittitur is a question of New York state law,
see Presley, 317 F.3d at 173 (citing N.Y. C.P.L.R. § 5501(c)), it would not
make sense for a court to rely on a federal rule to conduct the analysis.
In this case, no jury ever made a finding about digital
penetration, and such a finding was not subsidiary to any verdict
entered by any jury. Instructing one jury that it must accept a fact that
was not necessarily decided in a previous trial—as the district court
did here—is legally erroneous. For the purposes of issue preclusion,
“[w]hen a fact is not necessarily determined in a former trial, the
possibility that it may have been does not prevent re-examination of
that issue.” United States v. Hamilton, 118 F.4th 655, 660 (5th Cir. 2024)
(emphasis added) (quoting United States v. Brackett, 113 F.3d 1396,
1398 (5th Cir. 1997)). The “inquiry does not focus on what the jury may
have decided, but rather on what it must have decided.” Id. (quoting
33 See, e.g., Nivar v. Sadler, No. 13-CV-7141, 2016 WL 3647957, at *4-6
(S.D.N.Y. July 1, 2016); Szabo v. Rodriquez, No. 09-CV-2048, 2012 WL
6161936, at *3-4 (E.D.N.Y. Dec. 11, 2012).

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37
United States v. Sarabia, 661 F.3d 225, 232 (5th Cir. 2011)).34 Here, the
district court gave preclusive effect to an issue that was neither
actually decided by the jury nor essential to the previous judgment.
That was an error.
And in this case, the failure to follow the law of issue preclusion
raises Seventh Amendment concerns. The conclusion of the district
court about the implicit factual finding invaded the province of the
jury. “[T]he drawing of legitimate inferences from the facts” is one of
the “jury functions, not those of a judge.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The district court “could not itself
determine the issues of fact … for this would cut off the plaintiff’s
unwaived right to have the issues of fact determined by a jury.” Balt.
& Carolina Line, Inc. v. Redman, 295 U.S. 654, 658 (1935). “While it is
correct practice for the judge to instruct in an absolute form on an
admitted state of the case, he is not authorized to take from the jury
the right of weighing the evidence bearing on controverted facts.”
Mut. Life Ins. Co. v. Snyder, 93 U.S. 393, 394-95 (1876). The district court
here made its own inference based on a debatable record and gave it
preclusive effect in a new proceeding. The district court thereby acted
as the jury in addition to the judge.35
34 See Postlewaite v. McGraw-Hill, 333 F.3d 42, 48 (2d Cir. 2003) (“[I]n order
for a judgment to be preclusive, the issue in question must have been
actually decided, and its determination must have been essential to the
judgment. If an issue was not actually decided in the prior proceeding, or if
its resolution was not necessary to the judgment, its litigation in a
subsequent proceeding is not barred by collateral estoppel.”) (citation
omitted).
35 The panel opinion asserted that the truth or falsity of President Trump’s
2019 statements “did not turn on the specific sexual act he committed.”
Carroll, 151 F.4th at 69 n.15. Carroll accused him of rape. The first jury

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38
D
The ambiguous conclusion of the first jury with respect to the
truth or falsity of Carroll’s accusation and President Trump’s denial
was not the only problem with imposing automatic liability on
President Trump without a trial. The district court further determined
that “[t]he verdict in Carroll II established also that Mr. Trump’s 2019
statements were made with actual malice.” Carroll, 690 F. Supp. 3d
at 407.
That makes no sense. Actual malice means that the defendant
made the statement “with knowledge that it was false or with reckless
disregard of whether it was false or not.” Church of Scientology Int’l v.
Behar, 238 F.3d 168, 174 (2d Cir. 2001) (quoting New York Times Co. v.
Sullivan, 376 U.S. 254, 280 (1964)). It must be established with “clear
and convincing evidence” that “the defendant in fact entertained
serious doubts as to the truth of his publication.” Id. Because the
showing depends on the state of mind of the speaker at the time of
publication, we have specifically held that “information acquired
after the publication of defamatory material cannot be relevant to the
publisher’s state of mind of his alleged malice at the time of
publication.” Herbert v. Lando, 781 F.2d 298, 306 (2d Cir. 1986). In
violation of these principles, the district court held that a
determination that President Trump spoke with actual malice in 2022
determined that he did not commit rape but a sexual abuse. The panel
opinion identified these 2019 statements: “‘Shame on those who make up
false stories of assault to try to get publicity for themselves,’ ‘I would like
to thank Bergdorf Goodman for confirming that they have no video footage
of any such incident, because it never happened,’ and ‘[f]alse accusations
diminish the severity of real assault.’” Id. at 69 n.14. The truth or falsity of
these statements turns on whether the particular accusation that Carroll
made—of rape—was true or false.

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39
necessarily means that he spoke with actual malice when making a
different statement after just hearing the accusation three years
earlier.36 It is “self-evident” that any verdict about a defendant’s state
of mind in 2022 does not predetermine a verdict about his state of
mind three years earlier. Herbert, 781 F.2d at 306.
The panel opinion did not even attempt to defend the decision
of the district court. The panel opinion instead endorsed “the district
court’s alternative holding that Carroll satisfied her burden at
summary judgment on the element of actual malice.” Carroll, 151 F.4th
at 71. But the reasoning of the panel opinion on this point was no more
defensible. The panel opinion held that President Trump “acted with,
at a minimum, reckless disregard for the truth” because he did not
undertake an independent investigation of Carroll’s accusations
before issuing a denial:
In his deposition testimony, Trump admitted that prior
to making his 2019 statements, he never read Carroll’s
book or the New York magazine publication, never
contacted Bergdorf Goodman’s, never did any research
on Carroll, and never had anyone working for him
research Carroll. He also admitted that, before issuing his
2019 statements, he had no knowledge of Carroll’s book
deal, financial circumstances, or political affiliation.
Id. at 71-72. None of that established actual malice. “The reckless
conduct needed to show actual malice ‘is not measured by whether a
reasonably prudent man would have published, or would have
36 See Carroll, 690 F. Supp. 3d at 408 (“Accordingly, as Ms. Carroll argues,
‘no reasonable person could believe that Mr. Trump acted with actual
malice in October 2022, but lacked it in June 2019.’”) (alterations omitted)
(quoting Memorandum of Law in Support of Plaintiff’s Motion for Partial
Summary Judgment, supra note 30, at 20).

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40
investigated before publishing,’ but by whether there is sufficient
evidence ‘to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication.’” Church
of Scientology, 238 F.3d at 174 (quoting St. Amant v. Thompson, 390 U.S.
727, 731 (1968)). President Trump was not required to read Carroll’s
book before speaking in order to avoid liability for defamation.
Carroll instead was required to identify clear and convincing
evidence that President Trump spoke without subjectively “believing
the truth of the publication.” Karedes v. Ackerley Grp., Inc., 423 F.3d
107, 114 (2d Cir. 2005) (quoting Sack on Defamation: Libel, Slander,
and Related Problems § 5.5.1.1 (3d ed. 2005)).
In every other defamation case, the actual malice standard
raises “the plaintiff’s burden of proof to an almost impossible level.”
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 771
(1985) (White, J., concurring in the judgment). In the first trial against
President Trump, however, “the district court excluded evidence of
the defendant’s contemporaneous state of mind, ensuring that the
plaintiff easily met the actual malice standard.” Carroll, 141 F.4th
at 368 (Menashi, J., dissenting from the denial of rehearing en banc).
In this case, the district court went even further—imposing liability
for actual malice without any evidence or any trial at all. It was not a
fair judicial proceeding.
E
On top of the errors already discussed, the panel opinion
upheld an unlawful and grossly excessive award of damages. The
damages award in this case included (1) damages that were
unauthorized under New York law, (2) compensatory damages that
were duplicative, and (3) an overall award that was record-
breakingly excessive.

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41
1
In New York, a showing of actual malice “is insufficient by
itself to justify an award of punitive damages, because that malice
focuses on the defendant’s state of mind in relation to the truth or
falsity of the published information.” Prozeralik v. Cap. Cities
Commc’ns, Inc., 82 N.Y.2d 466, 479 (1993). The “common-law malice”
that “would allow an award of punitive damages” involves “the
defendant’s mental state in relation to the plaintiff and the motive in
publishing the falsity.” Id. at 479-80. For an award of punitive
damages, the plaintiff must establish that the statements were made
with common-law malice so that those damages serve “to punish a
person for outrageous conduct which is malicious, wanton, reckless,
or in willful disregard for another’s rights.” Id. at 479-80 (quoting
Vassiliades v. Garfinckel’s, 492 A.2d 580, 593 (D.C. 1985)).
In this case, “the district court instructed the jury that ‘[a]
statement is made maliciously … if it is made with a deliberate intent
to injure or out of hatred, ill will or spite, or in willful, wanton, or
reckless disregard of another’s rights.’” Carroll, 151 F.4th at 77
(quoting App’x 1857). President Trump requested that the jury be
instructed that, to award punitive damages, the malicious intent to
injure must be the speaker’s sole motivation. The district court
rejected that request,37 and the panel opinion held that it was right to
do so. According to the panel opinion, the New York courts impose a
requirement that “common law malice must be ‘the one and only
37 See Carroll, 731 F. Supp. 3d at 631 (“[T]he persuasive evidence is that New
York’s highest court would reject defendant’s contention that the Court
should have instructed the jury that it could award punitive damages only
if it found that Mr. Trump was motivated solely by a desire to injure
Ms. Carroll.”).

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42
cause for the publication’” only “to overcome a conditional or
qualified privilege against a defamation suit.” Carroll, 151 F.4th at 75-
76 (quoting Liberman v. Gelstein, 80 N.Y.2d 429, 439 (1992)).
President Trump’s position has support in the case law,38 and
in any event the panel opinion was wrong that no qualified privilege
applied in this case. When a speaker defends himself against an
accusation of wrongful conduct, a qualified privilege arises that
allows liability for defamation “only if a jury could reasonably
conclude that ‘malice was the one and only cause for the
publication.’” Liberman, 80 N.Y.2d at 439 (quoting Stukuls v. New York,
42 N.Y.2d 272, 282 (1977)). As President Trump explained to the
district court, “in these types of circumstances, New York courts have
recognized a qualified privilege of reply when accused of charges of
unlawful activity.”39 That is correct: “New York courts recognize a
qualified privilege of reply” based on the speaker’s “right to defend
himself” from accusations of wrongful conduct. Giuffre v. Dershowitz,
38 See, e.g., Morsette v. The Final Call, 309 A.D.2d 249, 256 (1st Dep’t 2003)
(“[A] triable issue of common-law malice is raised only if a reasonable jury
could find that the speaker was solely motivated by a desire to injure
plaintiff, and … there must be some evidence that the animus was the one
and only cause for the publication.”) (internal quotation marks omitted);
Verdi v. Dinowitz, 204 A.D.3d 627, 627 (1st Dep’t 2022) (“The pleadings
allege that the defamatory statements were made with political and racial
motivations, as well as a desire to shift blame, rather than, as required for
punitive damages in a defamation claim, that defendant was motivated
solely by malice.”).
39 Memorandum of Law in Support of Defendant’s Motion for Summary
Judgment at 34, Carroll v. Trump, No. 20-CV-7311, 2022 WL 21889346
(S.D.N.Y. Dec. 22, 2022), ECF No. 109 (citing Kane v. Orange Cnty. Pubs., 232
A.D.2d 526, 527 (2d Dep’t 1996)).

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43
410 F. Supp. 3d 564, 574 (S.D.N.Y. 2019). One of our colleagues has
explained the privilege this way:
[A] person also has a right to defend himself or herself
from charges of unlawful activity. An individual is
privileged to publish defamatory matter in response to
an attack upon his or her reputation; the speaker is given
more latitude in such a situation than if the statements
were not provoked.
Id. (alteration omitted) (quoting Sack on Defamation: Libel, Slander,
and Related Problems § 9.2.1 (5th ed. 2017)). And the Second
Restatement of Torts puts it this way:
A conditional privilege exists … when the person
making the publication reasonably believes that his
interest in his own reputation has been unlawfully
invaded by another person and that the defamatory
matter that he publishes about the other is reasonably
necessary to defend himself. … Thus the defendant may
publish in an appropriate manner anything that he
reasonably believes to be necessary to defend his own
reputation against the defamation of another, including
the statement that his accuser is an unmitigated liar.
Restatement (Second) of Torts § 594 cmt. k (1977). The “general rule”
in New York is that a defamation defendant “had the right to repel
the attack upon it and to retort upon its assailant, in case such retort
was a necessary part of its defense or fairly arose out of the charges
made against it.” Collier v. Postum Cereal Co., 150 A.D. 169, 178 (1st
Dep’t 1912). The privilege of “reply to defamatory attack” is
“available to one who has been defamed in the first instance, and
who, in response to the attack, responds in kind.” Shenkman v.
O’Malley, 2 A.D.2d 567, 574 (1st Dep’t 1956). The privilege means that
“[t]he defendant plainly had the right to characterize the plaintiff’s

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44
charges as false, and mere vehemence, even exaggerated statement,
will not as matter of law destroy the privilege or necessarily present
a question of fact.” Collier, 150 A.D. at 178. The privilege also entails
“the right to impugn the motives of its assailant,” id., because the
accuser has placed those motives at issue.40
The qualified privilege of reply is well-established. 41 In this
case, President Trump responded to an accusation that he committed
rape by denying the charge, by stating “that his accuser is an
unmitigated liar,” Restatement (Second) of Torts § 594 cmt. k, and by
“impugn[ing] the motives of [his] assailant,” Collier, 150 A.D. at 178.
40 See Shenkman, 2 A.D.2d at 574 (“One who makes a public attack upon
another subjects his own motives to discussion. It is a contradiction in terms
to say that the one attacked is privileged only to speak the truth and not to
make a counterattack, or that legitimate self-defense consists only in a
denial of the charge or a statement of what is claimed to be the truth
respecting its subject-matter. One in self-defense is not confined to parrying
the thrusts of his assailant. Of course, the counterattack must not be
unrelated to the charge, but surely the motives of the one making it are
pertinent.”) (quoting Collier, 150 A.D. at 178).
41 See Kane, 232 A.D.2d at 527 (“[S]ince the open letter was the funeral
director’s response to unfavorable publicity against him—publicity
concededly generated ‘with the cooperation of plaintiffs’—it was covered
by a qualified privilege.”); Fowler v. New York Herald Co., 184 A.D. 608, 611
(1st Dep’t 1918) (explaining that when “he was denounced by the plaintiff
publicly as an imposter, the defendant’s natural course” was to mount a
defense “even if such defense called forth a revelation or explanation of the
infirmities or peculiarities of the plaintiff” and that “[t]he defendant had a
qualified privilege so to do”); see also Phifer v. Foe, 443 P.2d 870, 871 (Wyo.
1968) (“After an attack on a defendant by a plaintiff, defendant has a right
to defend himself against plaintiff’s charges, even if he defames the plaintiff
in so doing.”); J.A. Bryant, Libel and Slander: Qualified Privilege of Reply to
Defamatory Publication, 41 A.L.R.3d 1083 (Originally published in 1972).

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45
Even putting aside presidential immunity,42 that was a qualifiedly
privileged communication.43
The district court rejected the application of the privilege of
reply on the ground that “any such claim of a qualified
privilege … depends on weighing the evidence of Mr. Trump’s
motives for making the allegedly defamatory statements.” Carroll v.
Trump, 680 F. Supp. 3d 491, 516 n.103 (S.D.N.Y. 2023). That was
wrong. Once the qualified privilege attaches, the question of whether
the defendant exceeded the privilege is submitted to the jury:
“Whether the defendant in its publication went beyond its legal privilege
and should be charged with malice was a question of fact for the jury,
both in determining defendant’s liability and also in determining the
amount of punitive damages which should be awarded in case
liability were found.” Fowler, 184 A.D. at 611 (emphasis added).44
The panel opinion held that the district court did not need to
instruct the jury that common-law malice must have been the sole
reason for the allegedly defamatory statement. But that is how the jury
must determine whether the defendant exceeded the privilege. As the
panel opinion explained, “if ‘the defendant’s statements were made
to further the interest protected by the privilege,’ it does not matter if
42 See Restatement (Second) of Torts § 591 cmts. a-b.
43 See id. § 594 cmt. k.
44 See also Mencher v. Chesley, 193 Misc. 829, 832 (N.Y. Sup. Ct. 1948)
(“Plaintiff contends … that the defendant in any event went beyond his
legal privilege in repelling the attack and that consequently his privilege
affords him no protection. The court does not agree with plaintiff’s
contention. It seems that the reply made by the defendant was relevant to
the issues made by plaintiff, and that the question whether the defendant
went beyond his privilege is one of fact for the jury to determine, and that
it cannot be disposed of as a matter of law.”).

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46
the ‘defendant also despised plaintiff.’” Carroll, 151 F.4th at 76
(quoting Liberman, 80 N.Y.2d at 439). It stands to reason that a speaker
would have animosity toward someone who accused him of criminal
wrongdoing.
Because the jury was not instructed that it needed to “conclude
that malice was the one and only cause for the publication,” Liberman,
80 N.Y.2d at 439 (internal quotation marks omitted), the jury
instructions were erroneous and the award of damages—especially
the punitive damages award—was improper.45
2
In addition to the unauthorized damages, this case involved a
duplicative compensatory damages award. The jury was instructed
that it should calculate compensatory damages in two steps. “First, it
was asked to assign a dollar amount to the ‘damages attributable to
the June 21 and 22 statements,’” excluding something called “the
reputation repair program.” Carroll, 151 F.4th at 79 (emphasis
omitted) (quoting App’x 1856). “Second, it was asked to fill in the
amount of damages, if any, that it awarded ‘for the reputation repair
program.’” Id. (emphasis omitted) (quoting App’x 1856). “The jury
awarded Carroll $7.3 million in compensatory damages other than for
the reputation repair program and $11 million for the reputation
program itself.” Id.
In other words, the jury awarded compensatory damages both
for the cost attributable to the harm and for the cost of repairing the
harm and thereby making the plaintiff whole. The panel opinion held
that this was permissible because “there is a difference between the
45 Nor was the privilege defeated by a showing of actual malice. See supra
Part II.D.

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47
costs required to repair an individual’s reputation and the costs
arising from the damaged reputation itself.” Id. at 81.
No, there is not. These are two ways of measuring the same
harm. It is well-established throughout the law that “compensatory
damages may be measured by either (1) cost of repair or
(2) diminution in value.” Lichtefeld v. Mactec Eng’g & Consulting, Inc.,
239 F. App’x 97, 102 (6th Cir. 2007) (emphasis added).46 It cannot be
both. “A basic principle of compensatory damages is that an injury
can be compensated only once.” Bender v. City of New York, 78 F.3d
787, 793 (2d Cir. 1996).
The district court believed that the jury awarded “$11 million
in reputational and $7.3 million in non-reputational compensatory
damages.” Carroll, 731 F. Supp. 3d at 634 (emphasis added). But that
46 See, e.g., Scribner v. Summers, 138 F.3d 471, 472 (2d Cir. 1998) (“Under New
York law, ‘the proper measure of damages for permanent injury to real
property is the lesser of the decline in market value and the cost of
restoration.’”) (quoting Jenkins v. Etlinger, 55 N.Y.2d 35, 39 (1982)); Rainbow
Travel Serv., Inc. v. Hilton Hotels Corp., 896 F.2d 1233, 1242-43 (10th Cir. 1990)
(“Awarding [the plaintiff] both the full extent of injury to its good will,
however, and the means to repair that damage amounts to a double
recovery.”); Ostano Commerzanstalt v. Telewide Sys., Inc., 880 F.2d 642, 649
(2d Cir. 1989) (“[T]he plaintiffs cannot recover both benefit-of-the-bargain
damages for breach of contract and warranty and out-of-pocket expenses
for fraud. Such a double recovery would put them in a better position than
they would have been in had the contract been satisfactorily performed.”);
O’Brien Bros. v. The Helen B. Moran, 160 F.2d 502, 505 (2d Cir. 1947) (“The
damages sustained by an automobile in a collision may be established by
showing the reasonable cost of the repairs necessary to restore it to its
former condition, although the general rule is that the measure of damages
to personal property is the difference between its market value immediately
before and immediately after the injury.”) (quoting Gass v. Agate Ice Cream,
Inc., 264 N.Y. 141, 143 (1934)).

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48
led to President Trump’s argument that “the $7.3 million award was
limited to emotional distress damages.” Carroll, 151 F.4th at 80. The
panel opinion rejected that argument on the ground that the $7.3
million provided compensation for “other reputational harms—such
as the loss of Carroll’s career at Elle, the reduction in freelance work,
and the cost of increased security measures.” Id. But the “reputation
repair program” was expressly designed to compensate Carroll for
those harms. The expert report providing the basis for the program
describes her career at Elle,47 her freelance work,48 and the harms to
those interests. 49 The expert testified that the “reputation repair
program” aimed to be “an appropriate means of removing any harm
that would have been caused by the June 24th statement.” 50 And
Carroll’s attorneys described the program as “a series of public
relations steps necessary to fix the harm that Donald Trump’s
defamatory statements caused.” 51 There is no evident distinction
47 See, e.g., Expert Report of Professor Ashlee Humphreys, PhD, at 4, Carroll
v. Trump, No. 20-CV-7311 (S.D.N.Y. Aug. 2, 2023), ECF No. 192-9 (“Once a
popular advice columnist at Elle Magazine, Ms. Carroll had invested many
years in forming and maintaining a person brand as a wise, personable, and
insightful truth-seeker. As a celebrated writer, she had a broad readership,
reaching about 4.5 million Elle readers.”).
48 See, e.g., id. at 6 (“Her work was featured in numerous major publications
including Rolling Stone, GQ, and Playboy.”).
49 See, e.g., id. at 45 (“One in four Elle readers being receptive to [Trump’s]
Statements is a considerable portion of readers to critically damage
Ms. Carroll’s brand as a columnist for the magazine.”).
50 Deposition Transcript of Ashlee Humphreys at 12:5-9, Carroll v. Trump,
No. 20-CV-7311 (S.D.N.Y. Dec. 13, 2023), ECF No. 237-2.
51 Trial Transcript of 1/26/24, at 708:17-19, Carroll v. Trump, No. 20-CV-7311
(S.D.N.Y. Feb. 27, 2024), ECF No. 301.

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49
between the cost of reputation repair and the cost of a damaged
reputation.
3
On top of the duplicative compensatory damages award of
$18.3 million, the jury awarded $65 million in punitive damages,
which the district court refused to remit. See Carroll, 731 F. Supp. 3d
at 628. That resulted in a ratio of 3.6:1—an amount so “grossly
excessive,” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
417 (2003), that even the panel opinion acknowledged that it
“approaches the upper limit of reasonableness,” Carroll, 151 F.4th at
84. And that is before one recognizes that the compensatory damages
award was inflated with a double recovery and the damages award
was based on insufficient jury findings under New York law.
“[T]he Constitution imposes a substantive limit on the size of
punitive damages awards.” Honda Motor Co. v. Oberg, 512 U.S. 415,
420 (1994). In particular, “[t]he Due Process Clause of the Fourteenth
Amendment prohibits the imposition of grossly excessive or arbitrary
punishments on a tortfeasor.” State Farm, 538 U.S. at 416. “Elementary
notions of fairness enshrined in our constitutional jurisprudence
dictate that a person receive fair notice not only of the conduct that
will subject him to punishment, but also of the severity of the penalty
that a State may impose.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
574 (1996). “To the extent an award is grossly excessive, it furthers no
legitimate purpose and constitutes an arbitrary deprivation of
property.” State Farm, 538 U.S. at 417.
Apart from that constitutional guarantee, our court purports to
“exercise relatively stringent control over the size of punitive awards
in order to ensure that such damages are ‘fair, reasonable, predictable,
and proportionate,’ to avoid extensive and burdensome social costs,

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50
and to reflect the fact that punitive awards are imposed without the
protections of criminal trials.” Turley v. ISG Lackawanna, Inc., 774 F.3d
140, 164 (2d Cir. 2014) (quoting Payne v. Jones, 711 F.3d 85, 93 (2d Cir.
2013)). Under that standard, “a degree of excessiveness less extreme
than ‘grossly excessive’ will support remanding for a new trial or
remittitur of damages.” Id. (internal quotation marks omitted). We
have said that we exercise strict “supervisory powers” over such
awards, id., such that “the degree of discretion enjoyed by trial courts
in these matters is relatively narrow,” id. (quoting Payne, 711 F.3d
at 100).
So much for that. The panel opinion in this case abdicated our
purported supervisory responsibility. We previously claimed that
when “the compensatory damages award is imprecise because of the
nature of the injury and high when compared with similar cases, ‘a
lesser ratio, perhaps only equal to compensatory damages, can reach the
outermost limit of the due process guarantee.’” Id. at 165 (emphasis
added) (quoting State Farm, 538 U.S. at 425). The compensatory
damages award in this case is nothing if not imprecise. As the panel
itself explained, “the jury was broadly instructed to decide the ‘fair
and just compensation for the injury to Ms. Carroll’s reputation and
the humiliation and mental anguish in her public and private lives that was
caused by’ Trump’s statements.” Carroll, 151 F.4th at 79 (alterations
omitted) (emphasis added).
We have before us a full trial record and the opinion of an
appellate court, yet no one can coherently describe the harms that the
compensatory damages award was designed to remedy that are
distinct from the “reputation repair program.” Nor is it clear why the
measure of compensatory damages for reputational harm should
involve the purported cost of running a nationwide public-relations
campaign designed to persuade Republicans not to believe what

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51
President Trump said about Carroll. 52 Even if some leeway to
measure compensatory damages were justified given the imprecision
involved—though it is hard to justify that much leeway—the panel
opinion could at least have adhered to the Turley rule that no more
than an amount of punitive damages “equal to compensatory
damages” could follow. Turley, 774 F.3d at 165 (quoting State Farm,
538 U.S. at 425). It did not even do that.
The Supreme Court has said that “the most important indicium
of the reasonableness of a punitive damages award is the degree of
reprehensibility of the defendant’s conduct,” Gore, 517 U.S. at 575, and
it has “instructed courts to determine the reprehensibility of a
defendant by considering” certain factors, State Farm, 538 U.S. at 419.
One is whether “the harm caused was physical as opposed to
economic.” Id. The allegedly defamatory 2019 statements did not
inflict a physical injury. Another is whether “the tortious conduct
evinced an indifference to or a reckless disregard of the health or
52 See Carroll, 151 F.4th at 64 (“Professor Ashley Humphreys, Carroll’s
reputation repair expert, testified that Trump’s statements were viewed by
between 85.8 and 104 million people and that it would cost between $7.2
and $12.1 million to run a successful campaign to repair Carroll’s
reputation.”); id. at 81 (explaining that “Professor Humphreys’s damages
estimate was based” on “the amount it would take to run a successful
reputation repair campaign aimed at changing the minds of people who
believed Trump’s false statements about Carroll. As Professor Humphreys
testified at trial, a reputation repair campaign consists of hiring ‘a number
of trusted sources’ who are tasked with sharing positive messages about
‘the attitude that you want to change.’”) (quoting App’x 1460); Expert
Report of Professor Ashlee Humphreys, supra note 47, at 45 (“76% of
Republicans polled either found the allegations of sexual harassment and
sexual assault made against Mr. Trump to be not credible or needed more
information about the claims, which I consider to mean that they are
receptive to believing the Statements in this case.”).

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52
safety of others,” id., such as the deceptive sale of an unsafe product,
see Gore, 517 U.S. at 576. The 2019 statements involved denials of
wrongdoing in a press release and comments to reporters. A third is
whether “the harm was the result of intentional malice, trickery, or
deceit, or mere accident.” State Farm, 538 U.S. at 419. In the 2019
statements, President Trump responded to an accusation that Carroll
published in New York magazine and to reporters’ questions about it.
The district court said that a jury could find that “‘the degree of
reprehensibility’ of Mr. Trump’s conduct was remarkably high,
perhaps unprecedented.” Carroll, 731 F. Supp. 3d at 634. But no
reasonable person could have expected anything other than a
vehement denial.
The panel opinion decided that the punitive damages award in
this case is “not out of step” with awards in “comparable defamation
suits.” Carroll, 151 F.4th at 85. It identified a default judgment against
Mayor Giuliani relating to the 2020 election, see Freeman v. Giuliani,
691 F. Supp. 3d 32, 71 (D.D.C. 2023), which resulted in punitive
damages of $75 million, see Freeman v. Giuliani, 732 F. Supp. 3d 30, 41
(D.D.C. 2024). It identified a state-court “award of $321,650,000 in
common law punitive damages in the form of attorneys’ fees to 11
plaintiffs against Alex Jones” related to Sandy Hook. Carroll, 151 F.4th
at 85 (citing Lafferty v. Jones, 229 Conn. App. 487, 493 (2024)). It turns
out, however, that “[i]n Connecticut, common-law punitive damages,
also called exemplary damages, primarily are compensatory in
nature.” Lafferty v. Jones, No. 18-6046436, 2022 WL 18110184, at *3
(Conn. Super. Ct. Nov. 10, 2022); see also Iino v. Spalter, 192 Conn. App.
421, 466 (2019). And the panel opinion explained that “a New York
state trial court awarded Louis Bacon $100 million in punitive
damages against fashion mogul Peter Nygard for defamation” even
though “that judgment was vacated and remanded due to a defect in

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53
service of process.” Carroll, 151 F.4th at 85 (citing Bacon v. Nygard, 232
A.D.3d 407, 407-08 (1st Dep’t 2024)). In fact, the appellate court
vacated the default judgment “granting plaintiff summary judgment
on his claims without opposition submitted by defendant” as well as
“the related Special Referee order awarding damages.” Bacon, 232
A.D.3d at 407.53
The point of “[c]omparing the punitive damages award and the
civil or criminal penalties that could be imposed for comparable
misconduct” is to identify an “indicium of the reasonableness of a
punitive damages award.” Gore, 517 U.S. at 583, 575. The panel had to
search for these highly idiosyncratic cases to find anything remotely
comparable to the punitive damages award here—and even then, the
cases involved either default judgments or non-punitive damages.
That is an indictment of rather than a justification for the panel’s
conclusion that the grossly excessive award was reasonable.
At a minimum, our court should eliminate the double recovery
in the compensatory damages award and adhere to our precedent in
allowing punitive damages in an amount no greater than “equal to
compensatory damages.” Turley, 774 F.3d at 165 (quoting State Farm,
538 U.S. at 425).
53 The unopposed judgment resulted in “the highest defamation judgment
in New York State history” based on findings of a special referee that the
defendant “executed a global, decade-long, multi-media defamation
campaign ‘to personally and professionally destroy Bacon.’” Susman
Godfrey, Press Release, Susman Godfrey Secures $203 Million Win for
Louis Bacon in Defamation Suit Against Peter Nygard (Oct. 4, 2023),
https://perma.cc/X4XT-NVZP.

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54
* * *
In this case, (1) the United States should have been substituted
as the defendant, (2) the district court should have considered the
defense of presidential immunity, (3) President Trump should not
have been denied a trial on liability, (4) the jury should have been
properly instructed on common-law malice, (5) the compensatory
damages should have been limited to a single recovery, and (6) the
grossly excessive punitive damages award should have been
remitted. Put together, these proceedings represent a manifest
miscarriage of justice. I would rehear the case en banc. I dissent from
the decision of the court not to do so.

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24-644
Carroll v. Trump
C HIN , Senior Circuit Judge, in support of the denial of rehearing en banc:
As a member of the three-judge panel that decided this case, I write to
more fully explain why our two per curiam decisions in this case were correct, and why
a majority of our Court appropriately declined to rehear those decisions en banc.1
These are the third and fourth times our Court has voted to deny en banc
rehearing of rulings in this case, which concerns defamation and sexual assault claims
brought by E. Jean Carroll against Donald Trump. The two per curiam decisions at issue
in this round of en banc voting -- the fifth and sixth opinions by our Court in this case --
arise from two related suits. The first ("Carroll I") asserted defamation claims based on
statements made by Trump in June 2019 while he was President, and the second
("Carroll II") asserted a sexual assault claim as well as defamation claims based on
statements made by Trump in October 2022 after he left office. Although Carroll I was
filed first, Carroll II was tried first; in May 2023, the jury in Carroll II found, following a
nine-day trial, that Trump sexually abused Carroll at Bergdorf Goodman in 1996 by
digitally penetrating her and that he defamed her with comments he made in 2022 after
1 As a senior judge, I have no vote on whether to rehear a case en banc. See 28 U.S.C.
§ 46(c); Fed. R. App. P. 40(c). Pursuant to this Court’s protocols, however, senior judges who
were members of the panel deciding the case that is subject to the en banc petition may file a
statement expressing their views where, as here, an active judge on this Court has filed a dissent
from the denial of a petition for rehearing en banc.

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2
he left office. The jury awarded Carroll $5 million in compensatory and punitive
damages, and this Court affirmed, Carroll v. Trump, 124 F.4th 140 (2d Cir. 2024) (per
curiam) ("Carroll 4"), and denied rehearing en banc, 141 F.4th 366 (2d Cir. 2025).2
Carroll I was tried in January 2024. The jury awarded Carroll $83.3 million
in compensatory and punitive damages. On appeal of the judgment, the panel issued
two decisions. First, in April 2025, while the appeal was pending and after it had been
fully briefed, Trump moved before us to substitute the United States as the defendant
under the Westfall Act, 28 U.S.C. § 2679. The panel denied the motion by order last
June, and issued an opinion explaining our reasoning in August. Carroll v. Trump, 148
F.4th 110 (2d Cir. 2025) (per curiam) ("Carroll 5"). Second, in September, the panel
rejected Trump's attempt to reassert a defense based on presidential immunity, and
affirmed the district court's rulings and the jury's damages award. Carroll v. Trump, 151
F.4th 50 (2d Cir. 2025) (per curiam) ("Carroll 6"). It is these two panel rulings -- Carroll 5
and Carroll 6 -- that are the subject of these en banc petitions.
Trump and the United States have petitioned for rehearing of Carroll 5,3
and Trump has petitioned for rehearing of Carroll 6.4 Neither petition identifies how
2 As in our panel opinions, I refer to the six decisions of this Court as Carroll 1-6,
numbered in chronological order. As previously indicated, supra at 1, I refer to the two
underlying suits as Carroll I (defamation claims based on June 2019 statements) and Carroll II
(sexual assault claim and defamation claims based on October 2022 statements).
3 Petition for Panel Rehearing and En Banc Determination of the United States and
President Donald J. Trump, Carroll v. Trump, No. 24-644 (2d Cir. Aug. 22, 2025), Dkt. No. 132.
4 Petition for Rehearing En Banc of President Donald J. Trump, Carroll v. Trump, No.

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3
our decisions conflict with precedent of this Circuit, another Circuit, or the Supreme
Court, or pose a question of "exceptional importance" justifying en banc review. See Fed.
R. App. P. 40(b)(2)(A)-(D).
The dissent goes further than either of the filed petitions, challenging
rulings in our decisions, as well as prior decisions of this Court, that neither Trump nor
the Government contests in their petitions for rehearing. En banc review of these issues,
which were not raised by the petitioning parties, was properly denied. See Trump v.
Illinois, 607 U.S. ---, 146 S. Ct. 432, 437 (2025) (Alito, J., dissenting from denial of stay) ("If
a party passes up what seems to us a promising argument, we do not assume the role of
advocate. Instead, we normally decide the questions that the parties choose to
present."); Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part
and concurring in judgment) ("Our adversary system is designed around the premise
that the parties know what is best for them, and are responsible for advancing the facts
and arguments entitling them to relief.").
A familiar principle cautions that rehearing en banc is "not favored," and is
indeed exceedingly rare in our Circuit. Fed. R. App. P. 40(c); see generally Jon O.
Newman, In Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brook. L. Rev.
365 (1984). I write to respond in greater detail to some of Trump's and the dissent's
24-644 (2d Cir. Sep. 23, 2025), Dkt. No. 138. The Government filed an amicus brief on the
presidential immunity issue. Brief for the United States as Amicus Curiae, Carroll v. Trump, No.
24-644 (2d Cir. Sep. 29, 2025), Dkt. No. 139.

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4
arguments, which a majority of this Court correctly determined did not warrant en banc
review.
BACKGROUND
The full history of this litigation is detailed in Carroll 6, 151 F.4th at 59-66.
I summarize it as relevant here.
On June 21, 2019, New York magazine published an excerpt from Carroll's
book in which she alleged that Trump sexually assaulted her at Bergdorf Goodman in
1996. Trump -- who was serving his first term as President at the time -- responded
mere hours later, asserting that "[he'd] never met [Carroll] in [his] life," "[f]alse
accusations diminish the severity of real assault," and "people should pay dearly for
such false accusations." Id. at 60. The next day, Trump told a reporter: "It's a totally
false accusation. I have absolutely no idea who [Carroll] is." Id. at 61. Two days after
that, The Hill released an interview in which Trump stated: "I'll say it with great respect:
Number one, she's not my type. Number two, it never happened. It never happened,
OK?" Id.
In November 2019, Carroll filed Carroll I in state court alleging defamation
based on these statements. In September 2020, the Government intervened pursuant to
the Westfall Act, which permits the United States to be substituted as the defendant in
certain tort suits against federal employees. The then-Attorney General certified that
Trump made the allegedly defamatory statements while acting "within the scope of his

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5
employment," removed the case to the Southern District of New York, and moved to
substitute the United States for Trump as the defendant. Carroll 5, 148 F.4th at 113. The
district court denied the motion to substitute, Trump appealed, and the Westfall Act
issue was litigated for the next four years, including in the D.C. Court of Appeals. See
id.; see also Carroll v. Trump, 49 F.4th 759 (2d Cir. 2022) ("Carroll 1") (certifying question of
D.C. scope of employment law); Trump v. Carroll, 292 A.3d 220 (D.C. 2023) (answering
certified question); Carroll v. Trump, 66 F.4th 91 (2d Cir. 2023) (per curiam) ("Carroll 2")
(remanding to district court with instructions to apply clarified law).
When the case was remanded to the district court in 2023, the district
court issued an order giving the Government and Trump an opportunity to address
Westfall certification and substitution within a thirty-day window. Carroll 5, 148 F.4th
at 114. The Government did so and wrote that, in light of the D.C. Court of Appeals'
decision and new factual developments, "the Department of Justice is declining to
certify under the Westfall Act, 28 U.S.C. § 2679(d), that defendant Donald J. Trump was
acting within the scope of his office and employment as President of the United States"
when he made the statements in question. Id. (citation modified). Trump did not
respond at all. Id.
No further action was taken on the Westfall issue until April 2025, when
the Government and Trump jointly moved, in our Court, to substitute the United States
for Trump under the Westfall Act. Id. The panel denied the motion in Carroll 5. Id.

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6
While the Westfall Act appeals were pending, litigation on the merits
continued in Carroll I, including over the import of presidential immunity. Trump did
not assert presidential immunity as a defense in his state court answer or amended
answer after removal, instead invoking it for the first time on summary judgment in
December 2022. Carroll 6, 151 F.4th at 62. The district court denied Trump's attempt to
assert immunity at that point, reasoning that, inter alia, he had waived it by failing to
raise it in earlier responsive pleadings. A different panel of this Court affirmed in a
consolidated interlocutory appeal, Carroll v. Trump, 88 F.4th 418, 434-35 (2d Cir. 2023)
("Carroll 3"), and the majority of active judges voted to deny rehearing en banc, No. 23-
1045, 2024 WL 96249 (2d Cir. Jan. 8, 2024). Carroll 3 held that presidential immunity is
waivable and non-jurisdictional, and that Trump had waived it here -- rulings that the
panel then adhered to in Carroll 6 as binding law of the case, and that Trump and the
dissent now again ask us to reconsider en banc.
While the appeals of Carroll I were proceeding, Carroll filed Carroll II
based on the Adult Survivors Act for sexual assault and for defamation based on a
different statement Trump made in October 2022, when he was no longer President. In
that statement, Trump called Carroll's allegations "a Hoax and a lie" and repeated that
she "is not telling the truth, is a woman who I had nothing to do with, didn't know, and
would have no interest in knowing her if I ever had the chance." Carroll 6, 151 F.4th at
63. As noted above, the Carroll II jury found that Trump sexually abused Carroll in 1996

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7
and that he defamed her in 2022. We affirmed in Carroll 4, and the Court again denied
en banc review. 124 F.4th at 150, reh'g en banc denied, 141 F.4th 366 (2d Cir. 2025).
Proceedings then restarted in Carroll I. In light of the jury verdict in
Carroll II, the district court granted summary judgment for Carroll on her defamation
claim in part because Trump was collaterally estopped from disputing whether he
sexually abused Carroll in 1996, whether his June 2019 statements were false, and
whether the statements were made with actual malice. See Carroll 6, 151 F.4th at 68-71.
The district court concluded in the alternative that even if Trump was not collaterally
estopped from disputing actual malice, Carroll was still entitled to summary judgment
because a reasonable jury could only so conclude on the record before the court. Id. at
71. Trump did not challenge the district court's alternative holding on appeal. Id. The
case then went to trial on damages in January 2024. Id. at 64. Carroll testified for two
days, describing the onslaught of attacks and death threats she had received since the
statements, the loss of her job at Elle and other sources of income, and her inability to
afford stronger personal security measures despite fearing for her physical safety. Id.
In addition, Carroll's expert testified that running a successful campaign to repair her
reputation would cost between $7.2 and $12.1 million. Id.
The jury also heard evidence that Trump had continued to make
disparaging statements about Carroll during the four years that Carroll I was pending.
These included comments made by Trump leading up to the Carroll II trial (repeating

-- 64 of 91 --

8
that he had "no idea who this woman is," and that the "Bergdorf Goodman" "stuff" is "all
made-up"), immediately after the Carroll II verdict (calling the lawsuit "the greatest
witch hunt of all time"), and while the Carroll I trial was taking place ("I am going to the
Biden encouraged Witch Hunt in Lower Manhattan to fight against a FAKE Case from a
woman I have never met, seen, or touched . . . ."). See id. at 64-65 (citations modified).
After testifying in Carroll I, Trump was warned on multiple occasions by the district
court to stop making audible comments about the case near the jury, and he walked out
during Carroll's closing argument. Id.
The jury awarded Carroll $11 million for the "reputation repair program,"
$7.3 million for other compensatory damages, and $65 million in punitive damages -- a
total of $83.3 million. Id.
DISCUSSION
I begin with a discussion of Carroll 5, the panel's decision concerning
substitution under the Westfall Act. I then discuss Carroll 6, the panel's decision on
presidential immunity, the district court's rulings, and the damages award in Carroll I.
I. The Westfall Act Decision (Carroll 5)
The Westfall Act permits the United States to be substituted as the
defendant in certain tort suits against federal employees if the alleged conduct occurred
within the "scope of [the employee's] office or employment." 28 U.S.C. § 2679(d). If the

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9
United States were to be substituted as the defendant in this case, Carroll's defamation
claims -- which have been litigated now for more than six years -- would be barred by
the Federal Tort Claims Act (the "FTCA"), which does not waive sovereign immunity for
the tort of defamation. See 28 U.S.C. § 2680(h); Carroll 1, 49 F.4th at 766.
The Westfall Act lays out a process for obtaining substitution in three
types of cases: (1) cases filed in federal court where the Attorney General has "certified"
that the employee was acting with his scope of employment (§ 2679(d)(1)), (2) cases filed
in state court where the Attorney General has issued such a certification (§ 2679(d)(2)),
and (3) cases where the Attorney General has declined to issue a certification, regardless
of the court in which the case commenced (§ 2679(d)(3)).
Carroll I was filed in state court, a situation covered by § 2679(d)(2). That
sub-section provides:
Upon certification by the Attorney General that the defendant employee
was acting within the scope of his office or employment at the time of the
incident out of which the claim arose, any civil action or proceeding
commenced upon such claim in a State court shall be removed without
bond at any time before trial by the Attorney General to the district court
of the United States for the district and division embracing the place in
which the action or proceeding is pending. Such action or proceeding
shall be deemed to be an action or proceeding brought against the United
States under the provisions of this title and all references thereto, and the
United States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(2) (emphasis added).
Sub-section (d)(2) contemplates a three-step process: the Attorney General
first issues a scope-of-employment certification, then removes the case to federal court,

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10
and lastly moves for the United States to be substituted as the defendant. As our
decision in Carroll 5 explains, the critical time limitation in (d)(2) is that certification and
removal must occur "before trial" for subsequent substitution to be proper. See 148 F.4th
at 116-17.
Initially, Carroll I followed the three-step process outlined above: Carroll
filed her defamation suit in state court, the Attorney General issued a Westfall Act
certification about a year later and removed the case, and the district court considered
and denied the Government's motion to substitute. See 49 F.4th at 760-61; see also De
Martinez v. Lamagno, 515 U.S. 417, 434 (1995) (noting that while certification is conclusive
for purposes of removal, substitution is subject to judicial review). All of this occurred
at the preliminary stages of the case, well "before trial." Carroll 5, 148 F.4th at 116-17.
The typicality ended there, as the Westfall issues were then litigated in
three courts over the course of four years. See id. at 113-14. The critical juncture for
present purposes was when the Westfall Act issue was presented on remand before the
district court in June and July 2023. At that time, the Attorney General expressly
declined to issue a Westfall certification or to otherwise seek substitution, and Trump
did not take any action with respect to certification or substitution. Id. at 114; see 28
U.S.C. § 2679(d)(3) (allowing the employee to petition for certification where the
Attorney General has declined to certify). The Westfall issue lay settled until April 2025,
when the Government and Trump revived their efforts to have the United States

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11
substituted as the defendant in the case by moving for that relief in this Court. Carroll 5,
148 F.4th at 114.
The Carroll 5 panel denied the Government's post-trial motion to
substitute for three separate reasons: (1) the Government and Trump had waived
substitution by failing to request it before the district court prior to trial; (2) the 2025
request was untimely under the Westfall Act; and (3) as a matter of equity in light of the
procedural posture of the case. See id. at 116-21. These rulings were correct as a matter
of law and did not warrant en banc review.
A. Trump and the Government waived their right to certify and substitute.
I begin, as does the dissent, with waiver.5 Both the Government and
Trump waived their right to seek substitution. Although the district court gave them an
opportunity in June 2023 to weigh in on the issue, the Government explicitly elected not
to seek substitution, and Trump took no action -- neither seeking certification or
substitution at the time, nor otherwise objecting to the Government's decision. Id. at
114. They did not raise the issue again until after the case had been tried, judgment had
been entered, an appeal was taken, and the appeal had been fully briefed on the merits.
Id.
5 I note, however, that rehearing en banc on the basis of waiver was not warranted in any
event because it was presented in the alternative to our statutory holding. See Carroll 5, 148
F.4th at 119.

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12
The dissent suggests that the panel decision treats the Attorneys General
in different administrations inconsistently, because we permitted Attorney General
Garland's "withdrawal" of certification in 2023, but denied Attorney General Bondi's
attempt to issue a new certification in 2025. See Menashi, J., dissenting from the denial
of reh'g en banc ("Dissent") at 9. This ignores two important realities. First, Garland's
decision not to certify followed substantive legal developments in this case, including
the D.C. Court of Appeals' intervening decision clarifying its respondeat superior law, a
remand from our Court to apply that law (Carroll 2), and an order for additional
briefing by the district court. No such legal developments preceded Bondi's post-trial
certification. Second, and more importantly, Garland's withdrawal occurred "before
trial" -- the critical time limitation for certification and substitution under § 2679(d)(2).
That is the dispositive reason why the Bondi certification, which occurred fifteen
months after trial, was untimely under the statute.
Contrary to the dissent's contention, the Government does not escape the
express time limitations of § 2679(d)(2) simply because it is not "a party" to the
litigation. See Dissent at 8. Indeed, the entire mechanism of the Westfall Act
contemplates that the Government is initially not a party to a suit brought against an
employee-defendant, but has rights and obligations to assert its interests under the Act.
The fact that Congress authorized the Attorney General to issue certifications does not

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13
mean that the Attorney General cannot waive this statutory right.6 After all, the dissent
appears to agree that if the Government failed to remove an action "before trial," as is
expressly required by § 2679(d)(2), it would waive its statutory right to do so. See
Dissent at 13. There is no reason to treat certification or substitution any differently.
As noted in Carroll 5, Trump also had the option to petition the district
court for certification under § 2679(d)(3) after the Government declined to certify in
2023. 148 F.4th at 119. If the Attorney General refuses to certify, sub-section (d)(3)
provides that "the employee may at any time before trial petition the court" to certify and
substitute. 28 U.S.C. § 2679(d)(3) (emphasis added). Here, the district court even
solicited "any further submission by . . . the defendant with respect to substitution," and
Trump took no action. Carroll 5, 148 F.4th at 114 (citation modified). On this point, even
the dissent does not dispute that a litigant like Trump can waive his right to petition for
certification and substitution. Indeed, Courts of Appeals have routinely held that
litigants waive their rights to assert a Westfall certification position on appeal where
they have taken a contrary position below.7
6 Cf., e.g., United States v. Coonan, 826 F.2d 1180, 1184 (2d Cir. 1987) (statutory right to
detention hearing within five days of initial appearance under Bail Reform Act is waivable);
Lilly v. City of New York, 934 F.3d 222, 237 (2d Cir. 2019) ("[I]t is not against public policy for
litigants to waive their statutory rights to attorney’s fees . . . ."); United States v. Tigano, 880 F.3d
602, 611 (2d Cir. 2018) ("[A] defendant may waive his statutory right to a speedy trial by failing
to raise it . . . .").
7 See, e.g., Jakuttis v. Town of Dracut, 95 F.4th 22, 35-36 (1st Cir. 2024); Beary v. Harris Cnty.,
No. 24-20371, 2025 WL 1577820, at *4 (5th Cir. June 4, 2025).

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14
B. The Government's April 2025 certification was untimely.
Carroll 5's primary holding is that the text of the Westfall Act does not
permit certification and substitution after trial. Again, § 2679(d)(2) provides: "Upon
certification by the Attorney General . . . any civil action . . . in a State court shall be
removed . . . at any time before trial." 28 U.S.C. § 2679(d)(2) (emphasis added). The
natural reading of this language is that certification and removal must happen "before
trial" for any subsequent substitution to occur.
The dissent acknowledges -- as it must -- that removal must occur before
trial. See Dissent at 13. But it goes on to argue that this limitation does not apply to
certification or substitution. Id. This is incorrect. If removal must occur before trial, so
too must certification, because certification is what prompts the removal in the first
place. See Carroll 5, 148 F.4th at 116; Sullivan v. United States, 21 F.3d 198, 205 (7th Cir.
1994) (citation modified) (noting that (d)(2) "permits removal, and therefore
certification, at any time before trial").8 Moreover, sub-section (d)(3) similarly requires
certification "at any time before trial" and substitution only "[u]pon such certification."
§ 2679(d)(3) (emphasis added). Accordingly, the Government's post-trial certification
was untimely under the text of (d)(2). And because substitution can only occur
8 The dissent selectively cites to Sullivan elsewhere to support its reading of sub-section
(d)(1). See Dissent at 12 & n.12. Sub-section (d)(1), however, governs cases filed in federal court,
and therefore does not apply here.

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15
following proper certification and removal, the Government could not move to
substitute, after trial and on appeal of the merits, based on an untimely certification.
The dissent next argues that our holding creates a circuit split, pointing to
the D.C. Circuit's decision in Wasserman v. Rodacker, 557 F.3d 635, 639 (D.C. Cir. 2009).
See Dissent at 15. The dissent contends that, under Wasserman, Carroll's case is actually
governed by § 2679(d)(1), which applies to cases commenced in federal court.9 For
support, the dissent draws on a line in Wasserman stating that "when a case is timely
removed to federal court, a new case is 'commenced' in the district court that allows 'the
United States to substitute itself for [the federal employee] pursuant to 28 U.S.C.
§ 2679(d)(1).'" Id. (citing Wasserman, 557 F.3d at 639).
In Wasserman, a pro se plaintiff who was arrested by a U.S. Park Police
officer for walking his dogs without a leash sued the officer in the D.C. Superior Court,
9 The dissent cites to three cases analyzing the timing of certification and substitution
under sub-section (d)(1), which does not contain the "before trial" language present in (d)(2).
See Dissent at 12 n.12. Two of those decisions pertain to certification and substitution issues in
cases initiated before the Westfall Act was enacted, see Sullivan, 21 F.3d at 205-06; Sowell v. Am.
Cyanamid Co., 888 F.2d 802, 804-05 (11th Cir. 1989), and the other decision concerns whether
district courts may permit reasonable discovery and order an evidentiary hearing to resolve
issues presented in a Westfall Act certification that conflict with what is alleged in a complaint,
Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994). These holdings are of questionable relevance to
this case. As to the dissent's arguments about (d)(1), it is an open question in our Circuit as to
whether that sub-section also requires that certification and substitution occur before trial, and
at least one other Circuit has held that it does. See Brown v. Armstrong, 949 F.2d 1007, 1012 (8th
Cir. 1991) ("[C]hallenges to the Attorney General’s certification must be resolved before trial, as
soon after the motion for substitution as practicable, even if an evidentiary hearing is needed to
resolve relevant fact disputes."). Regardless, we did not decide that question in Carroll 5, and
indeed did not make any holding as to the interpretation or operation of (d)(1).

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16
alleging that the officer violated his constitutional and civil rights. 557 F.3d at 636-37.
The officer removed the case to the D.C. District Court pursuant to 28 U.S.C. § 1441 and
§ 1442. Id. at 637.10 Notably, removal and substitution both occurred before trial. Id.
The D.C. Circuit held that certification and substitution was proper on "two grounds" --
either because when the officer's case was removed, the action was "commenced . . . in a
United States district court" for purposes of (d)(1), or because the D.C. Superior Court
should be considered a "state court" for purposes of (d)(2). Id. at 639.
To force a circuit split, the dissent would have us adopt an implausibly
broad reading of Wasserman's first ground, and completely ignore the second.
Wasserman indeed states that when the officer's case was removed, the action was
"commenced . . . in a United States district court." Id. at 639. But the D.C. Circuit clearly
was not holding that every state court case removed pursuant to (d)(2) then, upon
removal, becomes a new federal case governed by (d)(1) -- an interpretation that would
render (d)(2) entirely superfluous. That is an implausible reading, not least because
removal in Wasserman was effected by 28 U.S.C. § 1441 and § 1442, not the Westfall Act.
Instead, Wasserman resolved the narrow question of whether federal employees who are
sued in the D.C. Superior Court -- as opposed to any state court -- are entitled to
certification and substitution under § 2679(d). See id. at 639-40. And the dissent
10 The notice of removal was also filed on the behalf of the United States, but states that the
defendant, identified as Rodacker (the police officer), was removing the case pursuant to § 1441
and § 1442. See Wasserman, 557 F.3d at 637.

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17
altogether ignores the D.C. Circuit's alternative holding that the D.C. Superior Court is a
state court for purposes of (d)(2), a proposition that "seemed obvious" under that
circuit's caselaw. Id. at 638-39 (noting that in no prior cases did the D.C. Circuit even
see a need to "elaborate on the reasons why the Superior Court was a State court under
the Westfall Act").
In any event, there is no question that Carroll initiated her action here in
state court, or that her action was removed after certification pursuant to (d)(2). Carroll
5 thus accords with Wasserman in reasoning that removals of actions filed in state court
are effectuated under (d)(2) and are therefore subject to its time limitations. This
reading is consistent both with precedent of our Court interpreting substantially similar
language in related statutes, and with that of other Circuits interpreting § 2679(d). See
Carroll 5, 148 F.4th at 118-19 (collecting cases).
Nor does our holding misconstrue or undermine the Westfall Act's
purpose, which is to "relieve covered employees from the cost and effort of defending
the lawsuit, and to place those burdens on the Government's shoulders." Id. at 117
(quoting Osborn v. Haley, 549 U.S. 225, 252 (2007)). Despite the dissent's contentions, see
Dissent at 14, requiring certification and substitution before trial does not undercut the
Westfall Act's purpose of immunizing employees in covered suits. That the Westfall Act
creates immunity does not mean that it does so indefinitely, especially given the
Supreme Court's repeated instruction that "[i]mmunity-related issues" under the Act

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18
"should be decided at the earliest opportunity." Osborn, 549 U.S. at 253. I see no reason
why enforcing the limitations Congress enacted would upset this purpose.
C. Carroll 5 contained no substantive scope-of-employment or substitution
analysis.
The final "error" alleged by the dissent is not actually about this decision
at all. Instead, the dissent advances a new theory of the President's scope of
employment not asserted by any of the parties, and criticizes three prior decisions of
three different courts applying well-settled law that scope of employment questions
under the Westfall Act are determined according to state respondeat superior law. See
Carroll v. Trump, 498 F. Supp. 3d 422 (S.D.N.Y. 2020) (the district court's 2020 decision on
the Government's initial motion for substitution); Carroll 1, 49 F.4th 759 (this Court's
2022 decision certifying the scope-of-employment question); Trump v. Carroll, 292 A.3d
220 (D.C. 2023) (the D.C. Court of Appeals' decision clarifying its respondeat superior
law).
The dissent asserts that these three courts all erred by looking to state law
to analyze whether Trump's statements were made within his scope of employment.
See Dissent at 20. But to be clear, the panel's decision in Carroll 5 did not address this
question. It merely held that the Government's attempt to certify and substitute
post-trial was untimely under the Westfall Act. Carroll 5 therefore created no split on
any substantive scope of employment law with the D.C. Circuit or any other circuit,
notwithstanding the dissent's suggestions otherwise. Contra id. at 18-19. Moreover,

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19
even assuming the panel had weighed in on the scope-of-employment issue, the
applicable law is well-settled and did not merit en banc review. The principle that the
dissent calls "bizarre" and "strange" -- that federal courts should resolve scope of
employment questions under the FTCA in accordance with state respondeat superior law
-- see id. at 6, 20, is based on the text of the FTCA itself11 and has been applied
consistently by this and every other Court of Appeals for decades.12
The dissent instead urges us to adopt a new scope-of-employment test
that applies only when the "employee" is the President. See id. at 4-6. Tellingly, even the
Government did not make this argument below, and instead urged application of D.C.
respondeat superior law.13 And neither the Government nor Trump argued for such a
new test in their en banc petition, which appropriately limited its challenges to our
11 The FTCA provides federal courts with "exclusive jurisdiction of civil actions on claims
against the United States, for money damages, . . . for [tortious conduct] of any employee of the
Government while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1) (emphases added).
Accordingly, the Act expressly incorporates state substantive law.
12 See, e.g., Hamm v. United States, 483 F.3d 135, 138 (2d Cir. 2007) ("scope of employment" is
defined "by the respondeat superior law of the jurisdiction in which the accident occurred")
(citation modified); Fountain v. Karim, 838 F.3d 129, 135 (2d Cir. 2016) (same). Every other
Circuit also looks at state respondeat superior law. See Aversa v. United States, 99 F.3d 1200, 1208
(1st Cir. 1996); Lomando v. United States, 667 F.3d 363, 374 (3d Cir. 2011); Jamison v. Wiley, 14 F.3d
222, 237 (4th Cir. 1994); Palmer v. Flaggman, 93 F.3d 196, 202 (5th Cir. 1996); Chandonais v. U.S.
Dep't of Air Force, No. 90-2103, 934 F.2d 322 (table), 1991 WL 93096 (6th Cir. June 3, 1991); St.
John v. United States, 240 F.3d 671, 676 (8th Cir. 2001); Saleh v. Bush, 848 F.3d 880, 888 (9th Cir.
2017); Hockenberry v. United States, 42 F.4th 1164, 1170 (10th Cir. 2022); Bennett v. United States,
102 F.3d 486, 489 (11th Cir. 1996); Plevnik v. Sullivan, 146 F.4th 1174, 1182 (D.C. Cir. 2025).
13 See Carroll 1, 49 F.4th at 766 ("The parties all agree that the second issue presented (scope
of employment) is governed by the District of Columbia’s respondeat superior law.").

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20
actual holding on the timeliness of certification.14 As reflected by the vote of the
majority of active judges on this Court, there is no reason to convene en banc to consider
a legal theory -- not advanced by any party -- that would contravene statutory text, our
own precedent, and the law in every other Court of Appeals.
∗ ∗ ∗
At bottom, I agree with the dissent that "the same rules should apply
equally to all defendants." Id. at 3 (quoting Carroll, 141 F.4th at 368 (Menashi, J.,
dissenting from the denial of rehearing en banc)). The fact of the matter is that no other
defendant would be permitted to move to substitute the United States in his place,
fifteen months after trial and the entry of judgment against him. The Court
appropriately declined to convene en banc to revisit this issue.
II. The Merits Decision (Carroll 6)
A month after the panel issued Carroll 5, we decided the merits of the
appeal in which Trump and the United States again requested substitution. In Carroll 6,
the panel concluded that it was bound by this Court's prior holding on presidential
immunity, affirmed the district court's summary judgment rulings and jury
instructions, and upheld the jury's award of $83.3 million in compensatory and punitive
14 See generally Petition for Panel Rehearing and En Banc Determination of the United States
and President Donald J. Trump, supra note 3.

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21
damages. 151 F.4th at 59.
Trump petitioned for en banc review of our rulings on presidential
immunity, for which the Government has also filed an amicus brief, and on punitive
damages.15 The dissent argues our Court should also have conducted en banc review of
the district court's grant of partial summary judgment for Carroll on two elements of
liability not raised by Trump for rehearing: its jury instructions on punitive damages,
and the jury's compensatory damages award. See Dissent at 32-49. To the extent the
dissent goes further in challenging our decisions than the parties did, those criticisms
are unpersuasive.
I begin by discussing immunity and punitive damages, the two rulings
challenged by Trump. I then address the dissent's additional opposition to our rulings
regarding summary judgment, jury instructions, and compensatory damages.
A. Carroll 3 was binding law of the case on presidential immunity.
In 2023, a previous panel of our Court confronted as a matter of first
impression the question of whether presidential immunity could be waived. Carroll 3,
88 F.4th at 425. At that time, Trump had asserted that presidential immunity was
categorically not waivable, and did not even brief the argument that his actions in this
case did not constitute waiver. See id. at 429 & n.52.
15 See Petition for Rehearing En Banc of President Donald J. Trump, supra note 4, at 4, 16;
Brief for the United States as Amicus Curiae, supra note 4.

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22
The Carroll 3 panel explained in an extensive opinion that, contrary to
Trump's argument, presidential immunity is "not jurisdictional" and is instead "treated
like other forms of immunity that [Trump] does not dispute are waivable." Id. at 429. It
then held that Trump waived his immunity defense here by, among other things, failing
to assert it in his answer to Carroll's complaint in state court and conceding to it at oral
argument. Id. at 429-30. Rehearing en banc was denied, with no active judge calling for
a vote. Carroll v. Trump, No. 23-1045, 2024 WL 96249 (2d Cir. Jan. 8, 2024).
Two years later in Carroll 6, we adhered to these rulings when Trump
again asserted that presidential immunity cannot be waived. 151 F.4th at 66. In this
appeal, Trump also argued for the first time that even if immunity could be waived,
such waiver requires an "explicit and unequivocal renunciation." Id. (citation modified).
The panel rejected this renewed argument because Carroll 3 was law of the case, and
because the Supreme Court's decision in Trump v. United States, 603 U.S. 593 (2024)
("Trump"), did not alter the prevailing law on whether and how presidential immunity
could be waived.
Although the dissent critiques our Court's decision in Carroll 3, the panel
was bound to follow it as law of the case. Under our Circuit's precedent, we revisit
issues explicitly or implicitly decided on prior appeal only when there is an
"intervening change of controlling law" that creates "a clear conviction of error with
respect to a point of law on which [the] previous decision was predicated," when there

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23
is new evidence, or "to correct a clear error or to prevent manifest injustice." United
States v. Aquart, 92 F.4th 77, 87, 93 (2d Cir. 2024) (citation modified). None of those
justifications were present here.
Carroll 3 pertained to waiver. Accordingly, the question is whether Trump
"made clear a change in prevailing Circuit law" on that issue, and if it did so in a
manner that "departed significantly from controlling precedent." Id. at 92 (citation
modified). The answer is no. Trump -- a case about the scope of presidential immunity
in criminal prosecutions -- said nothing about whether or how immunity could be
waived in a civil case. That observation does not discount the magnitude of Trump's
impact on other dimensions of presidential immunity.16 But to the extent Trump
changed the prevailing law on the scope of such immunity, no part of it "departed
significantly" from the prior law concerning waiver on which Carroll 3 relied. Id. at 92
(citation modified).
16 The dissent points to another decision of this Court in which our colleagues remanded a
case to the district court with instructions to consider "whether Trump v. United States
represented a change in controlling law." Dissent at 22 (quoting New York v. Trump, 158 F.4th
458, 466 (2d Cir. 2025) (per curiam)). The dissent omits the end of the quoted sentence from
New York v. Trump, which explains that Trump may have changed "controlling law that could
support a finding of good cause." 158 F.4th at 466-67 (emphasis added). As can be surmised when
the instruction is read in full, the question in New York v. Trump was whether Trump's untimely
attempt to remove his criminal hush money prosecution could be excused for "good cause"
because the prosecution was one "for or relating to" his official acts as President. Id. at 467. The
panel noted that whether removal was proper turned on whether the State relied on evidence
"relate[d] to immunized official acts" in a manner precluded by the intervening decision in
Trump. Id. at 468. On the other hand, despite the dissent's attempts at recharacterization, Trump
does not change the prevailing law laid down by Carroll 3, which did not discuss whether the
2019 statements fell within the bounds of Trump's official responsibilities as President.

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24
In arguing that both Carroll 3 and Carroll 6 were incorrect, the dissent
mischaracterizes both opinions as deciding a question not analyzed by either decision --
whether Trump's 2019 statements about Carroll would be covered by presidential
immunity had he not waived the defense. But neither Carroll 3 nor Carroll 6 opined on
the scope of presidential immunity, or analyzed whether Trump's 2019 statements were
protected by it. So the question of whether Trump "materially affected the law of
presidential immunity," Dissent at 25, is simply not the relevant inquiry.
Carroll 3 remains law of the case. But even if it did not, we appropriately
declined to convene en banc to craft new law on waiver. Trump argued, for the first
time on appeal in Carroll 6, that any waiver of presidential immunity requires an
"explicit and unequivocal renunciation." See 151 F.4th at 66 (citation modified). For this
new argument, he relies on United States v. Helstoski, 442 U.S. 477 (1979), a case decided
over forty years ago holding that legislative immunity under the Speech and Debate
Clause could only be waived in this manner. Id. at 490-91. Trump (and the dissent)
now argue that presidential immunity should also be subject to this waiver standard,
because something in Trump transformed presidential immunity into the type of
structural constitutional immunity that is on par with the Speech or Debate immunity at
issue in Helstoski. See Dissent at 23; Petition for Rehearing En Banc of President Donald
J. Trump at 11, Carroll v. Trump, No. 24-644 (2d Cir. Sep. 23, 2025) ("Trump Petition").
As Carroll 6 explained and as Trump itself reasoned, the notion that

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25
presidential immunity derives from structural separation of powers principles existed
long before the Supreme Court's decision in Trump. See Carroll 6, 151 F.4th at 66; Trump,
603 U.S. at 611-13, 638 (discussing and quoting, inter alia, United States v. Nixon, 418 U.S.
683 (1974); Nixon v. Fitzgerald, 457 U.S. 731 (1982)). To the extent Trump reaffirmed that
presidential immunity is "rooted in the constitutional tradition of the separation of
powers," it did not identify a new structural source of this immunity that would
heighten the bar for waiver. See Carroll 6, 151 F.4th at 67. Nor does Trump suggest that
the standard for waiving presidential immunity should or must mirror, for example,
congressional abrogations of state sovereign immunity derived from the text of the
Eleventh Amendment. Contra Trump Petition at 12.
The dissent contends that Trump did not waive immunity here. But that
argument is clearly belied by the record. Presidential immunity was not raised for the
first three years of this case. See Carroll 3, 88 F.4th at 430. Trump did not mention
immunity in his answer to Carroll's complaint in state court.17 He did not invoke
immunity when he moved to amend his answer after the case was removed in 2022. See
17 The dissent points to Trump's answer in his state court motion to stay the proceedings,
in which he raised an affirmative defense that he was "immune, under the Supremacy Clause of
the United States Constitution, from suit in state court while serving as President of the United
States" and that "[t]he alleged defamatory statements [were] privileged or protected by one or
more immunities . . . under the Constitution of the United States." Dissent at 22 n.18; see Carroll
6, 151 F.4th at 62 n.7. This vague, passing reference to "one or more immunities" is insufficient
to meet the requirements to assert an affirmative defense in a responsive pleading under state or
federal civil procedure rules. See Carroll v. Trump, 680 F. Supp. 3d 491, 499 n.22 (S.D.N.Y. July 5,
2023) (collecting cases).

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26
Carroll 6, 151 F.4th at 62. Instead, Trump argued that presidential immunity barred
liability for the first time in his summary judgment papers filed in December 2022 and
January 2023. Id. In Carroll 3, this Court affirmed the district court's ruling that Trump
waived his presidential immunity defense by failing to invoke it in his first state court
answer -- a decision that Trump did not even challenge in that appeal. 88 F.4th at 429 &
n.52. Moreover, Trump's counsel conceded at that oral argument that "assuming the
defense of presidential immunity is waivable, Defendant had waived that defense." Id.
at 430. If any other litigant had failed to raise an affirmative defense in this way, there
would be no question as to whether he waived his right to assert it.
In sum, Carroll 3 correctly held that presidential immunity is waivable and
that Trump waived it here. The dissent points to no change in controlling law on
waiver that renders Carroll 3 inapplicable law of the case.
B. The jury's punitive damages award was correct.
The only other argument Trump raises in his petition is that the $65
million punitive damages award in this case -- representing about a 3.6:1 ratio to the
$18.3 million total compensatory award -- was grossly excessive. See Trump Petition at
16. Trump and the dissent argue that the award violates due process under our
decision in Turley v. ISG Lackawanna, Inc., 774 F.3d 140 (2d Cir. 2014). Trump Petition at
17; Dissent at 49-50. It does not.
Nowhere in Turley did we pronounce a "rule" that "no more than an

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27
amount of punitive damages 'equal to compensatory damages' could follow." Dissent
at 51 (quoting Turley, 774 F.3d at 165). In fact, we affirmed a 2:1 ratio of punitive to
compensatory damages in Turley itself, while reasoning that awards of a ratio lower
than 4:1 generally do not violate due process in other types of cases. See 774 F.3d at
165-66; see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003). We
explained that a lower ratio for cases like Turley -- which involved a Title VII hostile
work environment claim -- was appropriate because the award for emotional damages
was "imprecise because of the nature of the injury," and because the overall award was
"high when compared with similar cases." 774 F.3d at 165.
This is not a hostile work environment case, but instead one for
defamation arising out of sexual abuse. And Carroll's injuries are not "imprecise" like
the intangible emotional damages in Turley. Instead, these compensatory damages were
quantified based on extensive testimony about the loss of Carroll's career at Elle and
other sources of income, and the concrete cost of rehabilitating her reputation. Carroll 6,
151 F.4th at 64. Beyond labeling the comparator cases to which our decision cites as
"highly idiosyncratic," Dissent at 53, the dissent does not point to any basis for ignoring
them, especially when the Supreme Court has noted our history of "providing for
sanctions of double, treble, or quadruple damages to deter and punish." State Farm, 538
U.S. at 425.

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28
Critically, "the most important indicium" of a punitive damages award's
reasonableness is "the degree of reprehensibility of the defendant's conduct." BMW of
N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996); accord Dissent at 51. The dissent
characterizes Trump's conduct as merely statements "respond[ing] to an accusation that
Carroll published," to which "no reasonable person could have expected anything other
than a vehement denial." Dissent at 52 (emphasis in original). But as detailed in Carroll
6, the record showed that Trump made multiple statements over many years accusing
Carroll of lying for political and financial gain, and suggesting that Carroll was too
unattractive for Trump to have sexually assaulted her. 151 F.4th at 83. As a result of
Trump's statements, Carroll was harassed and humiliated, subjected to death threats,
and feared for her physical safety for years. Id. And Trump showed no remorse,
continuing his attacks against Carroll during and after two federal trials, and even
proclaiming two days into the Carroll I trial that he would continue to defame her "a
thousand times." Id. at 84. Together, this conduct went far beyond a "vehement denial."
C. The district court's summary judgment rulings were correct.
Trump's petition for rehearing ended there, but the dissent further
critiques each remaining aspect of our decision in Carroll 6. I address these briefly in
turn.
After the jury in Carroll II found that Trump had sexually abused Carroll
in 1996 and had defamed her in his 2022 statement, the district court granted partial

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summary judgment for Carroll in Carroll I on the liability elements of her defamation
claim -- namely, that Trump's 2019 statements were (a) false and (b) made with actual
malice. See Carroll 6, 151 F.4th at 68.
On falsity, the district court held that Trump was collaterally estopped
from relitigating the falsity of his statements based on the jury's findings in Carroll II.
The jury in Carroll II was given a special verdict form and asked to decide among three
theories of liability: whether Trump (1) raped, (2) sexually abused, or (3) forcibly
touched Carroll. Id. It answered no to (1) but yes to (2). Id. Trump did not request a
special finding from the jury on the specific sexual conduct constituting "sexual abuse,"
thereby permitting the district court to make that determination pursuant to Rule
49(a)(3). Id. Accordingly, when Trump moved for remittitur, the district court held that
the jury implicitly found that Trump had digitally penetrated Carroll, and made the
same finding itself in the alternative -- a conclusion that was well-supported by the
record in this respect. See id. at 69-71. Contrary to the dissent's contention, we are
permitted to treat a district court's Rule 49 findings in the same manner as typical
findings of fact subject to clear error review. See Roberts v. Karimi, 251 F.3d 404, 407-08
(2d Cir. 2001). There was therefore nothing improper about according this finding
preclusive effect.
Moreover, the dissent does not actually dispute the reasoning behind our
holding -- that Trump was precluded from relitigating the falsity of the 2019 statements

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because their truth or falsity did not turn on the specific sexual act Trump committed.
As Carroll 6 explains, the truth or falsity of both the 2019 and 2022 statements depended
on whether Carroll was lying about being sexually abused by Trump in 1996, not how
he abused her. 151 F.4th at 69.18 There is no question that the Carroll II jury found that
Trump's 2022 statements about not knowing or sexually abusing Carroll were false.
Accordingly, the 2019 statements -- including that he "never met [Carroll] in [his] life"
and that the abuse "never happened" -- were equally false. Id. at 69 & n.14.
On actual malice, the district court held that even if Trump were not
precluded from relitigating actual malice, Carroll was still entitled to summary
judgment because Trump failed to raise a triable issue of fact as to whether he knew
that his 2019 statements were false or acted with reckless disregard to their truth or
falsity. Id. at 71. Trump failed to challenge this alternative holding on appeal, and as
noted in our opinion, that fact alone merited affirmance. Id. Nonetheless, Carroll 6 went
on to conclude that Trump had indeed raised no genuine issue of material fact as to
actual malice. Id. Although the dissent chides this as "not a fair judicial proceeding,"
18 In the 2019 statements, Trump said: "I've never met [Carroll] in my life," "[s]hame on
those who make up false stories of assault to try to get publicity for themselves," "I would like to
thank Bergdorf Goodman for confirming that they have no video footage of any such incident,
because it never happened," and "[f]alse accusations diminish the severity of real assault."
Carroll 6, 151 F.4th at 69 n.14 (citation modified). In the 2022 statement, Trump said: "She
completely made up a story that I met her . . . and, within minutes, 'swooned' her. It is a Hoax
and a lie," "it never happened," and "for the record, E. Jean Carroll is not telling the truth, is a
woman who I had nothing to do with, didn't know, and would have no interest in knowing her
if I ever had the chance." Id.

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Dissent at 40, it also fails to point to any disputed facts on this issue. Indeed, given the
preclusive effect of the first jury's finding that Trump did sexually abuse Carroll, there
is abundant evidence of actual malice here.19
On this record, a reasonable juror could only conclude that Trump made
his statements about Carroll knowing they were false or with reckless disregard of their
truth or falsity. See Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 182 (2d Cir. 2000).
D. The remaining challenges to the jury's damages award are meritless.
The dissent further challenges two additional elements of the jury's
damages award not raised in the petition for rehearing.
First, the panel opinion explains why punitive damages awarded here
were permitted under New York law. Just as Trump did initially on appeal, the dissent
conflates the role of common law malice for purposes of recovering punitive damages
and for overcoming a qualified or conditional privilege under New York law. See
Dissent at 41-45. There are two distinct concepts at play. New York law recognizes
certain qualified privileges when it comes to defamation that can be overcome if
19 Over the course of six years, Trump called Carroll's allegations "a Hoax and a lie" and
suggested that it was made up "for the sake of publicity," said he had "never met [Carroll] in
[his] life" despite there being a photo of them together in the 1980s, labeled this case "a complete
con job," accused Carroll of being "very deranged" and a "wack job," and vowed to "sue her"
during a deposition in this very case. Carroll 6, 151 F.4th at 60, 63, 69 n.14, 72 n.20. He
repeatedly disparaged Carroll leading up to and during both trials, called the case a "witch
hunt" and a "con job" within earshot of the jury, and walked out of the courtroom during
Carroll's summation. Id. at 65.

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common law malice was "the one and only cause for the publication." Liberman v.
Gelstein, 605 N.E.2d 344, 350 (N.Y. 1992) (citation modified). This is not true for punitive
damages, the purpose of which is to "punish a person for outrageous conduct which is
malicious, wanton, reckless, or in willful disregard for another's rights." Prozeralik v.
Cap. Cities Commc'ns, Inc., 626 N.E.2d 34, 42 (N.Y. 1993) (citation modified). As Carroll 6
explains, New York law does not import the "sole motivation" requirement for
overcoming a qualified privilege into the punitive damages context. See 151 F.4th at 76
(citation modified); Prozeralik, 626 N.E.2d at 42 (explaining that punitive damages are
allowed when behavior "measure[s] up to the level of outrage or malice underlying the
public policy"); N.Y. Pattern Jury Instr. -- Civil 3:30 (2024) (containing no "sole
motivation" requirement for punitive damages). Our decision also addressed how the
case on which the dissent relies made this very mistake and was acknowledged to be an
outlier by New York authorities. See Dissent at 42 n.38; Carroll 6, 151 F.4th at 76-77 &
n.28 (discussing Morsette v. "The Final Call," 764 N.Y.S.2d 416 (1st Dep't 2003)). The
dissent's repeated invocations of Liberman and other cases about qualified privilege do
not change the fact that punitive damages here were permitted under New York law.20
20 The dissent also contends that the district court erred in its punitive damages instruction
because Trump's statements were protected by the qualified privilege of reply under New York
law. See Dissent at 40-45. Trump waived this argument by failing to assert it as an affirmative
defense below, see Carroll v. Trump, 680 F. Supp. 3d 491, 517 n.103 (S.D.N.Y. 2023) ("[Trump's]
argument [regarding the qualified privilege of reply] arguably has been waived because it was
not raised in his answer . . . ."), and by failing to pursue the issue on appeal or in his petition for
rehearing en banc. In any event, the question of whether Trump's remarks were privileged

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Second, the compensatory damages awarded in this case were not
duplicative. The Carroll I jury was asked to quantify two distinct categories of damages.
The first category was damages that Carroll suffered because of the defamatory
statements, including her "humiliation and mental anguish," loss of her career at Elle
and other sources of income, and ongoing economic injury, excluding the costs of the
reputation repair program. Carroll 6, 151 F.4th at 79-80. The second was the cost of the
reputation repair program itself -- i.e., compensatory damages required to fix the
damage Trump caused to Carroll's reputation. Id. As we noted, the latter costs "are
distinct from the other damages that flowed from the reputational harm." Id. at 81. The
dissent fails to acknowledge that the district court instructed the jury that it could "not
award compensatory damages more than once for the same injury," id. (citation
modified), an instruction we "presume[]" the jury followed. United States v. Salameh, 152
F.3d 88, 116 (2d Cir. 1998) (citation modified).
CONCLUSION
These two per curiam decisions mark the due conclusion of two related
cases that have been litigated in our Circuit for over six years. Neither Trump nor the
Government identified any rulings by the panel that, upon review, conflict with
under New York law is irrelevant to the standard for awarding punitive damages, which, as
explained in Carroll 6 and again above, may be awarded without a "sole motivation" finding.

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precedent from our Circuit, another Circuit, or the Supreme Court, or raise questions of
exceptional importance. To the extent the dissent goes further than the relevant parties
did in critiquing our rulings, we appropriately declined to expend our collective judicial
resources to review them. The Court correctly denied these petitions for rehearing en
banc.

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