Painter says the Carroll case could let the Supreme Court define a president's official-capacity conduct
Richard PainterS. Walter Richey Professor of Corporate Law at the University of Minnesota Law School and former chief White House ethics lawyer, in an email to Dispute Index
Asked by Dispute Index about the timing of Trump's official-act defense, University of Minnesota law professor Richard Painter said his own commentary has focused instead on what is and is not official-capacity conduct by a president. He said the Supreme Court left that question unanswered in Nixon v. Fitzgerald and Trump v. United States and could answer it in the Carroll case.
Responding to
Trump's June 2019 statements denying E. Jean Carroll's allegation, made from the White House in response to press questions, were official acts protected by presidential immunity, and he never forfeited or waived that immunity.
“My comment on it has focused not on the timing of the defense and whether that defense was waived, but the underlying issue of what is and is not "official capacity" conduct of the president. That question was left unanswered by the Supreme Court in Nixon v. Fitzgerald (holding the president is immune from civil suit for official acts) and again in Trump v. United States (holding the president is immune from criminal prosecution for official acts). In the Carroll case the Court could answer that question”
Emailed statement
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This is a fascinating case. My comment on it has focused not on the timing of the defense and whether that defense was waived, but the underlying issue of what is and is not “official capacity” conduct of the president. That question was left unanswered by the Supreme Court in Nixon v. Fitzgerald (holding the president is immune from civil suit for official acts) and again in Trump v. United States (holding the president is immune from criminal prosecution for official acts). In the Carroll case the Court could answer that question (See Justice Barret’s concurrence in Trump v. United States discussing lack of clarity on that issue)
Where this statement fits
Trump asks the Supreme Court to overturn E. Jean Carroll's $83.3 million defamation verdict on immunity grounds; Carroll says he waived that defense
Trump and the Justice Department ask the Supreme Court to review the $83.3 million judgment over his 2019 statements about E. Jean Carroll, citing presidential immunity and the Westfall Act. Carroll says Trump gave up his immunity defense years ago.
Source and context
Emailed statement
Emailed comment from Richard Painter to Dispute Index on the Carroll immunity petitions
This is a fascinating case. My comment on it has focused not on the timing of the defense and whether that defense was waived, but the underlying issue of what is and is not “official capacity” conduct of the president. That question was left unanswered by the Supreme Court in Nixon v. Fitzgerald (holding the president is immune from civil suit for official acts) and again in Trump v. United States (holding the president is immune from criminal prosecution for official acts). In the Carroll case the Court could answer that question (See Justice Barret’s concurrence in Trump v. United States discussing lack of clarity on that issue)
About this source
Painter sent this reply by email on November 6, 2026, in answer to a Dispute Index request for a comment for this page on whether the timing of an official-act defense should be assessed differently when the Justice Department changes its position on substituting the United States as defendant. We hold the email.
Before the quotation
Graham Weller of Dispute Index asked Painter whether the timing of an official-act defense should be assessed differently when the Justice Department changes its position on substituting the United States as defendant. Painter began by calling it a fascinating case.
After the quotation
He cited Justice Amy Coney Barrett's concurrence in Trump v. United States, which he said discusses the lack of clarity on that issue.
How this statement is classified
The label describes this statement's response within the context above.
Why this label?
The reference point is Trump's June 2019 statements denying Carroll's allegation and his bid to escape the $83.3 million judgment through presidential immunity or substitution of the United States as defendant. Painter sets aside the question we asked, whether the defense came too late or was waived, and does not say whether Trump's statements were official acts. He calls that an open question the Court could answer in this case, so he takes no side on Trump's bid. He does not dispute how either side describes the case, so we labeled it Explicitly declines rather than Challenges the characterization.
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More from this case
Read the full casePopok says years of litigation amount to waiver of immunity
“Well, problem with that is a little thing called waiver. If you've waived the immunity, you can't assert it.”Read statement
E. Jean Carroll, in her Supreme Court brief, says the Court should not bail Trump out of the consequences of his litigation choices
“Nor should this Court grant certiorari to bail out this President from the consequences of his repeated litigation choices.”Read statement
The Justice Department tells the Supreme Court that Trump's 2019 statements about Carroll were plainly within the scope of his office
United States Department of Justice
“The error is especially egregious because, on the merits, President Trump's conduct was plainly within the scope of his office.”Read statement
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The Dispute Index. "Painter says the Carroll case could let the Supreme Court define a president's official-capacity conduct". First published: 2026-11-06. Last updated: 2026-11-06. https://disputeindex.com/events/8304-asked-by-dispute-index-about-the-timing-of