A federal appeals court has rejected the claim from former President Donald Trump that presidential immunity should dismiss E. Jean Carroll’s civil case against him.

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The judges said that Trump missed his opportunity to claim presidential immunity by not bringing it up earlier in the suit. Carroll said that Trump defamed her when he was president and denied her allegations that he had sexually assaulted her, CNN reported.

“This case presents a vexing question of first impression: whether presidential immunity is waivable. We answer in the affirmative and further hold that Donald J. Trump (‘Defendant’) waived the defense of presidential immunity by failing to raise it as an affirmative defense in his answer to E. Jean Carroll’s (‘Plaintiff’s’) complaint, which alleged that Defendant defamed her by claiming that she had fabricated her account of Defendant sexually assaulting her in the mid1990s,” the court ruled.

The decision confirms a lower court’s ruling that also rejected Trump’s motion for summary judgment.

Carroll had sued Trump in 2022 for sexual assault and defamation for the statements he made after he left the White House. A jury trial found him liable and fined him $5 million in damages.

The original lawsuit, which is set to go on trial in January, was filed in 2019 and has similar statements made by Trump while he was president, CNN reported.

Carroll’s attorney said, “We are pleased that the Second Circuit affirmed Judge Kaplan’s rulings and that we can now move forward with trial next month on January 16.”

While Trump’s attorney called the ruling “fundamentally flawed,” adding the legal team will ask the Supreme Court to review the case.

The Supreme Court is already considering a separate presidential immunity request. Special counsel Jack Smith is asking the high court to rule quickly on whether former President Donald Trump is immune from criminal prosecution as he faces charges of plotting to overturn the 2020 presidential election results.

Smith submitted the request on Monday and Trump’s attorneys were told to file briefs by Dec. 20. The debate at hand is not on the immunity itself, but instead whether or not to fast-track the case.

In the case, Trump claims that he is immune from prosecution because his conduct was connected to his official responsibilities and that the Senate’s acquittal of him in the February 2021 impeachment trial does not permit him to be prosecuted, Reuters reported.