At some point, the chronic incompetence of the people working for Trump has to reflect on the man’s capacity to do an executive job.
As I have noted before, Donald Trump is the client from hell. He stiffs his lawyers on bills. He ignores their advice. He demands that they take impossible, extreme, and indefensible positions. He lies to them or withholds information so that they are sent out to burn their own credibility on his behalf, after which he throws them under the bus. He doesn’t protect attorney–client privilege, so lawyers get forced to testify about their communications with him (a long-standing pattern; the ghostwriter of Art of the Deal recounted how Trump would let him listen on speakerphone to Trump talking to his lawyers). Several of the people who advised or represented him in his uniformly failed challenges to the 2020 election ended up getting indicted, disbarred, or both. His lawyers in the Mar-a-Lago boxes case got dragged into testifying because Trump had them tell falsehoods to the feds, which then unraveled.
This pattern predictably results in his getting the bad lawyering he deserves, either because he can’t get good lawyers to subject themselves to this or because his impossible demands result in strategic errors. Yet another consequence came today from the federal Court of Appeals for the Second Circuit in Manhattan, in E. Jean Carroll’s defamation suit. Trump argued that he was immune from suit because of presidential immunity. This was always a questionable argument: While Carroll sued Trump over statements Trump made while he was president, immunity would require Trump to act in his official capacity as president in claiming that Carroll was making up her story of being sexually assaulted by Trump in the 1990s. The controversy, like Paula Jones’s lawsuit against Bill Clinton, involved an alleged sexual assault that happened before Trump was president, so the argument would have to be that the president’s defense of his personal reputation is definitionally an official act.
But the Second Circuit didn’t even get to the question, because it concluded that Trump waived the immunity defense when his lawyers forgot to include it in filing his answer to Carroll’s complaint and waited three years to ask the court for permission to add the defense to his answer. Carroll filed her lawsuit in November 2019 in state court. Trump’s answer was filed, on a timely basis, in January 2020. The answer to a civil complaint is supposed to include any legal defenses a defendant may assert, although there are technical rules that vary by state and federal process on what things must be in an answer to avoid waiving them. Some things, like a lack of subject-matter jurisdiction, are not waivable because a federal court’s lacking the power to hear a case is not something the parties can change. Trump’s lawyers, however, didn’t raise presidential immunity until they filed a summary-judgment motion in January 2023, long after removing the case to federal court, and subsequently asked the trial judge to let Trump add the defense to his answer (as well as to an amended answer filed after Carroll amended her complaint). As the appeals court concluded, “Defendant unduly delayed in raising presidential immunity as a defense. Three years passed between Defendant’s answer and his request for leave to amend his answer. A three-year delay is more than enough, under our precedents, to qualify as ‘undue.'” The excuse that Trump had tried to raise related issues was not enough to explain why he had not taken the precaution of actually listing it as one of his defenses. And waiting until the eve of trial to raise it was unfair to Carroll:
Had Defendant raised presidential immunity before discovery closed, Plaintiff claims, she would have engaged in discovery on whether Defendant’s actions fell within his official duties. First, Plaintiff would have asked Defendant for more detail on the process through which he issued and prepared the June 2019 statements, including how the process compared to his pre- and post-presidential processes. Second, Plaintiff would have sought third-party discovery from White House personnel allegedly involved in preparing and issuing the statements. Third, Plaintiff would have sought expert testimony from former White House officials and requested internal White House documents from the National Archives regarding former presidents’ processes for issuing statements denying wrongdoing. (Footnotes omitted).
The presidency is an executive job. Aside from what comes out of presidents’ mouths or what they tweet with their thumbs — i.e., the sort of thing that got Trump sued in this case in the first place — most of what presidents do is done through other people. To hear Trump tell it, he is always being betrayed. At some point, the chronic incompetence of the people carrying out even simple rule-following tasks on his behalf has to reflect on the man’s capacity to do an executive job.