So holds the Second Circuit today, in an opinion (Carroll v. Trump) by Judge José Cabranes, joined by Judges Denny Chin and Maria Araújo Kahn. The defense, the court held, isn’t one of the rare subject-matter-jurisdiction-based defenses that can be raised at any stage of the case, and thus aren’t waivable. And, the court continued, Trump’s failure to raise the defense early in the litigation (as an affirmative defense in his Answer to Carroll’s Complaint) did indeed waive the defense.
None of this resolves whether the defense, if raised promptly, would have indeed precluded the civil lawsuit against Trump, nor does it speak to the merits of the lawsuit.
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