A federal appeals court on Wednesday rejected Donald Trump’s argument that presidential immunity should protect him against a defamation lawsuit by former magazine columnist E. Jean Carroll.

The Second Circuit Court of Appeals in New York upheld a June ruling by Manhattan-based U.S. District Court Judge Lewis Kaplan. Carroll has alleged Trump raped her in a New York department store dressing room in the mid-1990s. Trump responded by calling Carroll a liar and making disparaging remarks about her, prompting Carroll to sue.

Carroll’s defamation case is scheduled to go to trial Jan. 16. The three-judge court heard the appeal on an expedited basis because of the impending trial date.

Trump’s attorneys have claimed the lawsuit should be dismissed because Trump was acting in his official role as president when he responded to Carroll’s allegations. 

The appeals panel, however, agreed with Kaplan that Trump waited too long — three years — to invoke presidential immunity.

“This case presents a vexing question of first impression: whether presidential immunity is waivable,” the judges wrote in their ruling. “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.”

Carroll’s attorney, Robbie Kaplan, said in a statement: “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.”

In a statement to multiple media outlets, Trump attorney Alina Habba called the ruling “fundamentally flawed” and said she’d ask the Supreme Court to review it.

The lawsuit against Trump is one of two filed by Carroll.

In May, a federal jury in New York found Trump liable of sexually abusing and defaming Carroll and awarded her $5 million in damages. The jurors, however, did not find Trump liable of rape.

In July, Judge Kaplan ruled that the jury’s verdict can be applied to the upcoming trial. That means Trump has already been found liable again for defamatory remarks and the trial will only determine how much additional money Trump must pay her.