The Volokh Conspiracy

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President Trump's Kafkaesque Civil Trial in New York State

A Stalinist nightmare in New York State


Donald Trump has been ordered to pay a $355 million fine and has been barred from doing business in New York State for three years.  Judge Arthur Engoron ordered Trump to pay essentially all of his cash reserves of $400 million, which fine if upheld would force Trump to sell some of his real estate holdings to raise cash to live on.  Once interest is added on the total fine will rise to $450 million.  This is all on top of an $83.3 million fine Trump must pay for allegedly defaming the writer E. Jean Carroll.  The fines in total could deprive Trump of between 11% and 13% of his wealth.

Trump's adult sons Donald Jr. and Eric have also been fined, and they are barred from doing business in New York State for two years.  Ivanka or Melania Trump could legally run the Trump businesses for the next two years, but Judge Engoron appointed retired U.S. District Judge Barbara Jones to continue in her role as an "independent monitor" of the Trump business empire but expanded her authority to review financial disclosures before they are submitted to third parties.  Judge Jones can hire an independent director of compliance, and she has the authority to compel Trump to sell some or even all of his businesses down the road.  This is all punishment for Trump allegedly committing fraud by falsely in inflating and deflating the value of his real estate assets to pay lower state taxes and to receive more favorable loans from banks.

The New York State laws used to go after Trump have NEVER  been used in this way, historically, and while Trump may owe some back state taxes, if Judge Engoron is right, not a single bank claimed that it had been defrauded by Trump in the loans it had made to him.  This is truly a victimless crime.

Bankers took the stand at Trump's civil trial testifying that they would have gladly made loans to Donald Trump given his extraordinary success as a businessman.  It must also be noted that the banks that made loans to Trump did not take his assessment of the net worth of his assets at face value but made their own independent assessments of the value of Trump's assets.  This is apparently standard practice in the New York State real estate market where borrowers often overstate the value of their assets.

The bottom line is that a rarely used New York State penalty has been twisted into a tool for a grossly excessive fine to get Donald Trump because of his political views.  More seriously, the completely inappropriate appointment of Judge Jones as an "independent monitor" who can micromanage the Trump business, which she is not competent to do, and to even order the dissolution of the Trump Business in New York State.  This outcome was pursued by Letitia James, a politically ambition Democrat, who is the Attorney General of New York State, and who hopes to win a future Democratic primary for Governor of or Senator from New York State.

Ms. James and Judge Engeron have essentially turned a vaguely worded New York State law into a modern day Bill of Attainder targeted at Donald Trump both for political gain and because they despise his political views and desperately want to call his truthfulness into question as he runs for President of the United States inn 2024.  In doing this, the have violated Trump's First Amendment right to freedom of speech and of the press; his Fifth Amendment right not to be deprived of liberty or property without due process of law; his Fifth Amendment right not to have property taken away from him except for a public use with just compensation being paid; his Eighth Amendment right not to be made to pay an excessive fine; his Article IV, Section 2 right as a citizen of Florida to do make and enforce contracts in New York on the same terms as are other New Yorkers; and his Fourteenth Amendment right to be free to pursue an occupation without unnecessary and burdensome regulation.

The civil fraud judgment against Donald Trump is a travesty and an unjust political act rivaled only in American politics by the killing of former Treasury Secretary Alexander Hamilton by Vice President Aaron Burr.  If the New York State appellate courts do not reverse this judgment, the U.S. Supreme Court MUST grant cert on this case and reverse Judge Engeron's outrageous decisions.   National, presidential politics will be permanently altered if a local State's legal system can be used in this way against candidates for President of the United States.  This case raises a national issue of profound importance and if the New York State appellate courts do not address it, the U.S. Supreme Court MUST!