Second Circuit Lets $83.3 Million Carroll Verdict Stand, Drawing Sharp Dissent on Presidential Immunity

MANHATTAN (LN) — The Second Circuit on Tuesday declined to rehear en banc the defamation case brought by E. Jean Carroll against Donald Trump, leaving intact an $83.3 million damages award while drawing a pointed dissent from three judges who argued the panel committed six errors on presidential immunity, the Westfall Act, and the Seventh Amendment right to a jury trial.

The court denied rehearing without a majority favoring full-court review, following the panel's September 8, 2025 disposition of the appeal. Judge Alison J. Nathan took no part in the consideration.

Circuit Judge Steven Menashi, joined by Circuit Judge Michael Park and — except as to one section — Chief Judge Debra Ann Livingston, dissented and said he would grant both pending petitions for rehearing: one filed by the United States challenging the panel's refusal to substitute the government as defendant under the Westfall Act, and one filed by Trump challenging the damages judgment itself.

"In my view, the same rules should apply equally to all defendants," Menashi wrote, quoting his own prior dissent from a denial of rehearing en banc in the same litigation.

The dissent identified six discrete errors across two panel opinions. On the Westfall Act, Menashi argued the panel wrongly held that Attorney General Pam Bondi had waived the right to certify that Trump was acting within the scope of his office — even though, he wrote, the United States was never a party to the litigation and the statute imposes no time limit on certification. The panel had allowed Attorney General Merrick Garland to withdraw a prior certification by Attorney General William Barr after a D.C. municipal court clarified respondeat superior doctrine, but then barred Bondi from making a new certification after a change in administration. Menashi called that asymmetry unprincipled: "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 dissent also argued the panel created a circuit split by reading the Westfall Act to bar post-trial substitution in cases that originated in state court, even though other circuits have held that substitution under 28 U.S.C. § 2679(d)(1) carries no such time limit. The D.C. Circuit, Menashi wrote, has held that removal to federal court commences a new federal action to which the unlimited substitution provision applies — a rule that would have changed the outcome here.

On presidential immunity, Menashi said the panel compounded the error by dismissing the Supreme Court's 2024 decision in Trump v. United States, 603 U.S. 593, as too inconsequential to justify reconsideration. The panel had written that the decision "simply reaffirmed long-established principles" and that nothing in it prevented Trump from having raised the same immunity arguments earlier. Menashi called that holding "not credible," noting that another Second Circuit panel had already vacated a district court ruling in a separate matter because that court "does not appear to have adequately considered whether Trump v. United States represented a change in controlling law."

The dissent further challenged the trial structure itself. The district court had denied Trump a jury trial on whether his June 2019 statements were defamatory, ruling that a prior jury verdict in a separate trial over different 2022 statements precluded him from contesting falsity or actual malice. The district court had also made its own factual finding — that the first jury implicitly found that Mr. Trump deliberately and forcibly penetrated Ms. Carroll's vagina with his fingers — and gave that finding preclusive effect in the second proceeding. Menashi said no jury ever made that finding and that the district court's inference invaded the province of the jury in violation of the Seventh Amendment.

Carroll was represented by Roberta A. Kaplan of Kaplan Martin, LLP in New York. Trump was represented by Justin D. Smith of James Otis Law Group, LLC in St. Louis.

Four judges — Circuit Judges Sarah Merriam and Maria Araújo Kahn, joined by Beth Robinson and Myrna Pérez — wrote separately to concur in the denial, adopting a statement by Circuit Judge Denny Chin and arguing the petitions identified no conflict with binding precedent and raised no question of exceptional importance sufficient to support en banc review.

The dissent closed by urging the full court to take up the case to bring Second Circuit law on presidential duties and immunity "into conformity with decisions of the Supreme Court."