WSJ Publishes Leak from the New York Supreme Court Appellate Division, First Department

WSJ got some inside information about the pending Trump civil-fraud case.

The Wall Street Journal published an article, titled "Court Split Leaves Trump's Civil Fraud Appeal Stuck in Slow Lane."

The story begins:

The New York court weighing President Trump's appeal of a roughly $500 million civil-fraud judgment typically acts swiftly and unanimously, with many of its decisions coming within weeks after hearing arguments.

Trump's experience stands out as an unusual exception.

A five-justice panel has yet to render a decision nearly a year after taking up the case, leaving him and his business in limbo. Behind the scenes, members of the panel have been divided, and three of them have been writing opinions, according to people familiar with the matter. It couldn't be determined how they are split. Justices do occasionally shift their positions, and the number of opinions could change, the people said.

A spokesman for the New York state court system said it doesn't comment on pending litigation. A spokesman for Trump's legal team said, "It is time for the New York Courts to step in and end this witch hunt once and for all."

…

The panel hearing the Trump appeal includes four judges appointed by Democratic governors and one Republican appointee, David Friedman, who is regarded as among the most conservative of the court's 21 members. The court's presiding justice, Renwick, also on the panel, is viewed as a stalwart liberal who has an institutional interest in seeking consensus and guarding the court's reputation.

The United States Supreme Court has taken measures to prevent leaks. But what about the New York intermediate state appellate court?

There is obviously only one remedy for this leak. But I repeat myself.

Comments

[F.D. Wolf]

Non-paywalled link:

https://www.msn.com/en-us/news/other/court-split-leaves-trump-s-civil-fraud-appeal-stuck-in-slow-lane/ar-AA1KIITl

[NvEric]

Thank you.
Links must always be freely accessible types !

[Supremacy Claus]

All New York parties should be arrested, including the judges and jurors. The charge is honest services fraud. They took tax money. They spent their time on bogus charges for election purposes.

Lend me the tablet. I can get everyone decades of federal prison and $millions in fines. That includes toddlers.

[Krayt]

This is the case, well, one of several, where politically motivated hacks acted like tyrant kings of yore, who would expropriate the entire estates of uppity lords.

There was zero concern for rule of law, except faceted, and 100% concern for wielding the power of the state against a political opponent during the time of election. None of it was coincidence.

[David Nieporent]

So the fact that they didn't immediately, unanimously affirm the ruling but instead are carefully deliberating over it shows that there's zero concern for the rule of law?

[Mr. Bumble]

"... the rule of law?"

Hahahahahahahaha

[David Nieporent]

So the fact that they didn't immediately, unanimously affirm the ruling but instead are carefully deliberating over it shows that there's zero concern for the rule of law?

[Mr. Bumble]

Allowing the original case to go forward showed zero concern for the rule of law.

[Bob from Ohio]

Libs and "libertarians" endorsing the Soviet axiom of "give me the man, and I will find the crime" but bleating about "rule of law".

“I will never be afraid to challenge this illegitimate president,” James said in a video during the campaign. “I believe that this president is incompetent. I believe that this president is ill-equipped to serve in the highest office of this land. And I believe that he is an embarrassment to all that we stand for.” She went on to say Trump should be indicted on criminal charges and charged with obstruction of justice."

https://www.politico.com/news/2022/09/21/james-lawsuit-trump-longstanding-battle

[JesseAz (Prime Meanster of Sarcasia)]

Why do you pretend to understand legal doctrine? Every day this continues is a continued harm to Trump. Money changes valuation over time. It cant be invested. Fees are owed to the bonding entity.

Just admit you're not a lawyer but an activist. Be honest for once.

[David Nieporent]

So you'd rather they affirmed the verdict quickly?

[John F. Carr]

By a 2-1 vote the panel ruled that Attorney General James is entitled to seize the presidency to satisfy Trump's debt. The majority was divided on whether the Attorney General or the Governor would be entitled to exercise the seized presidential power.

"There is obviously only one remedy for this leak."

Sack the entire Appellate Division and dismiss the appeal for lack of a quorum.

[Riva]

Why is this surprising? It would be surprising if the NY courts acted professionally and honestly.

[Mr. Bumble]

Justice delayed is justice denied but then we are talking about Trump so justice doesn't enter the picture.

[LexAquilia]

They were trying to Save Democracy (tm). That grants them unlimited power and grace, as Saving Democracy(tm) is just as important as Saving The Planet(tm).

[loki13]

"The First Department typically issues decisions within 30 days, according to a 2024 court report. For each of the past five years, that report said, the court began its new annual session each September with zero pending and undecided appeals."

Huh. I'm not going to go into specifics, but it's been a minute since I've dealt with New York state issues.

What I can say is this... wow! I do a fair amount of state appellate work right now (along with other work), and ... while I won't divulge the state ...

Our appellate courts aren't providing PCAs in thirty days. We are lucky to get an opinion in six months.* I am so envious.

*In fairness, I do complicated issues. But I had an appellate issue take over thirty months after oral argument to get a friggin' opinion, and that required a notice of inquiry and further wait.

[tkamenick]

Last I checked, my state (Wisconsin) was averaging around 6-8 months after briefing is completed for the intermediate court of appeals to issue decisions. It only has 16 judges (divided into 4 districts), a number that hasn't changed in a really long time. The COA was created in 1978 with 12 judges and it was bumped up once.

[Kords]

For real. In Utah, I typically expect an opinion from the intermediate appellate court within about six months, and I'm surprised if it comes in less than three. For the Utah Supreme Court, I expect around a year, am surprised if it is less than six months, and not at all surprised if it takes more than a year.

[Reallynotbob]

The First Department has an excellent track record of handling a large volume of cases expeditiously and usually according to precedent. Many routine cases are disposed of with summary affirmances. Because of the variety of the appeals and the overall sophistication of the NYC bar, the law is very well developed in most commonly-litigated areas. That, in turn, facilitates speedy resolutions that don't require 20 page opinions each time.

I should also say that it's a 5-judge panel for each argument. In my opinion, that cuts down on the oddball 2-1 decisions that crop up in other states. The federal circuits have that problem also, but federal precedent is (historically) more stable overall.

[Social Justice is neither]

Between this and the NYC mayoral race it is clear NYC no longer wishes to maintain ANY semblance of a functioning city. How long before they declare trades on the NYSE are subject to city sales taxes to fund their idiocy?

[Reallynotbob]

Where do you live?

[CountmontyC]

You just had to give them that idea didn't you! A five minute timeout for you!

[JoeFromtheBronx]

"The United States Supreme Court has taken measures to prevent leaks."

The Wall Street Journal published various articles, aided by leaks, that discussed behind-the-scenes activities at the Supreme Court.

[David Nieporent]

This isn't exactly much of a "leak" anyway. The article is primarily rehashing what everyone already knows. This is the sole bit of inside information:

Behind the scenes, members of the panel have been divided, and three of them have been writing opinions, according to people familiar with the matter.

Which… well… duh. If the members of the panel weren't divided, the affirmance would've been issued already. The reporter could've easily replaced this sentence with, "Experts say that the lengthy delay suggests that the members of the panel are divided, and are likely writing several opinions," and no 'leak' would've been needed at all.

[Bob from Ohio]

"affirmance would've been issued already"

Pride goeth before destruction, and an haughty spirit before a fall.

[Life of Brian]

If the members of the panel weren't divided, the affirmance would've been issued already.

Yeah, dunno. I suspect that once the academic bravado is over and it's actually time to sit down and write an opinion that somehow manages to affirm Trump's liability without causing a substantial chunk of the NY business community to flee the state lest someday they honk off the wrong people and get selected as the next head-on-a-pole example, such a limiting principle just may have proven a wee bit elusive.

[Reallynotbob]

Not convincing, in my view. NYC already has strongest-in-class business fraud laws, including express jurisdictional provisions that cover financial crimes that pass through the state, even without an element-satisfying act that occurred within the state. If the business community was going to flee, that should have done it.

[Life of Brian]

Sadly today's not the day to tear this case apart again, but of course the underlying fraud law isn't really the issue here -- it's the novel and outcome-oriented way it was applied, in conjunction with the similarly outcome-oriented creative factfinding and the untethered and eye-wateringly disproportionate "damages" theory.

Given the amount of newly-plowed ground and almost gleeful lack of judicial restraint throughout the process, it's not clear how an appellate decision could convincingly dismiss all that as a fact-bound one-off that no one else need fear landing on their doorstep. I guess we'll see shortly.

[David Nieporent]

I actually think the most likely outcome is that the verdict is upheld, but the damages are reduced. (I don't know what you mean about applying it in a novel way, or what you mean by "creative factfinding," unless you're just adopting Trump's dishonest characterization of the opinion as Engoron assessing the value of Mar-a-Lago rather than Engoron discussing the undisputed evidence submitted on summary judgment.)

As for it being a one-off, I don't quite understand how to both argue that it is (that it's "novel") and that it's not (others need to fear it).

[Life of Brian]

I actually think the most likely outcome is that the verdict is upheld, but the damages are reduced.

Particularly given the rest of your paragraph, on what basis? Either the damages were well-grounded or they weren't. And given how the same general body of creative factfinding (a.k.a. Eragon's endless stream of "me likey plaintiff's number; me no likey defendant's number) drove both liability and damages, I'm doubly curious exactly what you think the appellate court would second-guess to thread that needle.

undisputed evidence

That's a LOL, folks.

As for it being a one-off, I don't quite understand how to both argue that it is (that it's "novel") and that it's not (others need to fear it).

Novel and one-off aren't at all coextensive. Holding that "obstructing an official proceeding" in 18 U.S.C. § 1512(c)(2) applied to people wandering through a building was novel, but until SCOTUS finally stopped the music it was far from a one-off.

[JesseAz (Prime Meanster of Sarcasia)]

Nobody was harmed dumdum.

Banks wanted to continue doing business dumdum.

Banks testified in Trumps defense dumdum.

The judge said mar a lago was only worth 20M dumdum.

The judge used both profit and delta in loan rates in the decision dumdum.

Want me to continue?

[David Nieporent]

Want me to continue?

Not if you're just going to continue to say things that are lies, no.

[Bunny495]

For starters who was harmed and what was the money value of the harm?

[David Nieporent]

The bank was harmed, by losing out on the interest it would've been entitled to if Trump's assets had been properly valued. The amount can be found in the opinion setting forth the court's verdict.

Also, I am continually bemused by MAGA's notion that it's lawful to lie to obtain a loan as long as one ultimately pays back the loan.

[David Nieporent]

Particularly given the rest of your paragraph, on what basis? Either the damages were well-grounded or they weren't.

No. Just because a theory of liability is sound does not mean that a calculation of damages is necessarily correct. I am not going to go back and look through the breakdown now, but as I recall, about half of the damages award was based on the difference between the interest rate Trump should've paid and the amount he paid because he lied about his financial state, and about half was based on profits he made by using the money he got from the loans for various business deals. ISTM that this may be a form of double-counting.

undisputed evidence

That's a LOL, folks.

Sorry if you don't understand how summary judgment works. Trump doesn't appear to, either, so you're in good (well, terrible) company.

[Life of Brian]

Huh. Since you just retreated into insult mode, I gather you looked back at the [cough] summary judgment ruling and discovered that the Mar-a-Lago valuation was indeed disputed. Eragon just mumbo-jumboed his way into the (in this case, gobsmackingly low and widely mocked) answer he wanted, just as with the rest of the opinion.

[David Nieporent]

I gather you looked back at the [cough] summary judgment ruling and discovered that the Mar-a-Lago valuation was indeed disputed.

Um, nope. That's not how it works on summary judgment; you can't just "dispute" something by saying "Nuh uh"; you need to put in admissible evidence. Trump did not.

[Bored Lawyer]

I was before the First Dept. twice in a fraud case. (Nowhere near as exotic as Trump's.) They were once considered a top-flight court. I found them to be hacks.

[David Nieporent]

I was before the First Dept. twice in a fraud case.

As a lawyer, I hope.

[Bored Lawyer]

Of course.

[M L]

I read the decision by Engmoron in this case, and the cases he cited and the statute at issue. His opinions are garbage and the theory of liability is ridiculous.

It is politically motivated lawfare, pure and simple tyranny and corruption of the justice system. The AG ran on a promise to witch hunt.

[David Nieporent]

I read the decision by Engmoron

Nothing says "expert legal analysis" like namecalling!

Although making that namecalling untethered to the identification of even a single legal error is kind of the icing on the ranting cake.

[M L]

🙂 You already know what the errors are, we discussed them at length.

I'll just reissue my long-standing request. I would like to see anyone produce a case, in any state, under any statute or common law doctrine, where someone was held liable for fraud, when there was no harm or damages and no reliance.

[Joe_dallas]

Correct -
A state Fraud statute that
Doesnt require a victim
Doesnt require damages or harm
Doesnt require reliance on the alleged false documents.

[Michael Ejercito]

The alleged victim was Deutsch Bank, whose executives testified for the defense.

[Joe_dallas]

Deutsch bank was not victim.

Any claim they lost money is inane.
fwiw - discounted pricing for higher volume is extremely common in every industry.

[M L]

Engoron even admitted there was no evidence of any harm or damages, or reliance. He wrote (emphasis added):

"Defendants correctly assert that “the record is devoid of any evidence of default, breach, late payment, or any complaint of harm”"

Of course, banks always get their own appraisals, too.

[Sarcastr0]

The Court has twice rejected the argument that a fraud conviction depends on economic loss.
Carpenter v. United States, 484 U. S. 19,
Shaw v. United States, 580 U. S. 63.

[h/t The Divided Opinion podcast's run through of Kousisis v. United States]

[Joe_dallas]

Sacastro - did you bother to read either case?

Petitioner Shaw used identifying numbers of a bank account belonging to bank customer Hsu in a scheme to transfer funds from that account to accounts at other institutions from which Shaw was able to obtain Hsu’s funds. Shaw was convicted of violating 18 U. S. C. §1344(1), which makes it a crime to “knowingly execut[e] a scheme . . . to defraud a financial institution.”

[Sarcastr0]

Per the citing case: " in Shaw v. United States, we affirmed a conviction under the bank fraud statute even though “no bank involved in the scheme” had “suffered any monetary loss.” The statute, we explained, “demands neither a showing of ultimate financial loss nor a showing of intent to cause financial loss.”

I read Kousisis v. United States which cites them for that purpose.

In Kousisis, a bidder on a government grant lied about being a minority-owned business by using a pass-through.

Kousisis says they did the work well, the government lost no money and attained no goods or services below the quality or above the cost it was seeking.

The Court, 9-0, rejected that 'no harm to the defrauded' theory, citing those two cases.

It's a really interesting case!

[Joe_dallas]

sarcastro - neither case are on point for the issue in the trump case

[Joe_dallas]

Sardumbo -
A - Try to read the case in full
B - try to understand the case

[Sarcastr0]

Joe, I am responding to this comment of yours:

"Deutsch bank was not victim.

Any claim they lost money is inane.
fwiw - discounted pricing for higher volume is extremely common in every industry."

That is not a relevant fact, per the precedent I have cited.

[David Nieporent]

Engoron even admitted there was no evidence of any harm or damages, or reliance. He wrote (emphasis added):

He did not admit that. He admitted that there was no default, breach, or late payment. He did not admit that there was no harm. (Note that the quote you provide does not say "default, breach, late payment, or harm"; it says "default, breach, late payment, or any complaint of harm." (Emphasis added.)) In fact, he pointed out that there was harm — that if Trump had been honest about his financial situation, he would have been less creditworthy and thus required to pay a higher interest rate.

[Mr. Bumble]

Sounds like trouble for Lucretia James mortgage fraud actions.

[David Nieporent]

And I'll repeat my earlier response: since nobody was held liable for fraud, what possible relevance could your question have? Trump was held liable for violating Executive Law § 63(12), a New York statute. Show me any case, in New York, the only relevant state, that held that any of the things you mentioned are required elements of a claim under that statute.

[Joe_dallas]

Wrong - its a fraud statute that doesnt any of the normal elements of fraud, yet you continue to defend a fraud statute that requires:

No victim
No harm or damages
No reliance

[Sarcastr0]

its a fraud statute that doesn't any of the normal elements of fraud
What's the issue here? Legislatures are free to set the elements of crimes as they want.

[David Nieporent]

Legislatures are free to set the elements of crimes as they want.

Civil offense, not crime, but yes.

And even more to the point, if all the statute did was recapitulate the elements of fraud, it wouldn't need to exist at all. The entire point of writing a statute is to obviate the need to establish some of the elements that one ordinarily needs to establish.

[M L]

Oh, right. It's not even a fraud case, according to Nieporent! Somebody quickly inform the Wall Street Journal who titled their piece, "Court Split Leaves Trump’s Civil Fraud Appeal Stuck in Slow Lane." As well as CNN, MSNBC, NYT, and every other media outlet in existence who has reported on the case over several years. All of them somehow managed to mistake it as a fraud case every time.

In reality, of course, Executive Law 63(12) is a fraud statute.

"Whenever any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business . . ."

The Trump case based on Executive Law 63(12) is, even according to Judge Engoron, a fraud case.

In his own words, Engoron's brilliant conclusions:

"A discrepancy of this order of magnitude, by a real estate developer sizing up his own living space of decades, can only be considered fraud."

Just so.

"OAG demonstrates that defendants repeatedly submitted fraudulent financial documents to obtain financial benefits which otherwise they would not have received."

Aside from the fraud conclusion - note that there is absolutely zero evidence defendants would not have otherwise received these "benefits."

"The documents here clearly contain fraudulent valuations that defendants used in business, satisfying OAG’s burden to establish liability as a matter of law against defendants."

Clearly.

"the repetitive and ongoing nature of defendants’ propensity to engage in fraud."

Always gotta watch out for the ongoing nature of a propensity.

"At the time in which the defendants submitted the SFCs, the restrictions were in effect, and any valuations represented to third-parties must have incorporated those restrictions; failure to do so is fraud."

A flaw in a valuation = Fraud.

"OAG has demonstrated liability for submitting fraudulent SFCs"

Yep. Fraud.

[Joe_dallas]

David Nieporent 2 hours ago
Flag Comment
Mute User
And I'll repeat my earlier response: since nobody was held liable for fraud, what possible relevance could your question have? Trump was held liable for violating Executive Law § 63(12),

DN - A two paragraph statute that uses the term "fraud" or "fraudulent" 10 times in the first of two paragraphs.

[Sarcastr0]

You're as usual ignorant as all hell about statutory interpretation.

But terms like fraud 'bring their soil with them' - i.e. any ambiguity can reach back to common law principles to resolve them.

But you've not alleged any ambiguity - you're reading whole-ass requirements into the statute that *aren't even part of common law fraud*.

[Joe_dallas]

Sarcastr0 15 minutes ago
Flag Comment
Mute User
You're as usual ignorant as all hell about statutory interpretation.

Sardumbo - How many backflips does it take to understand that the statute deals with fraud when the term fraud and fraudulent is used 10 times in the one operative paragraph of a two paragraph statute?

[Sarcastr0]

Fraud is not a magic word that brings in with it all the common law requirements.

Statutes override common law requirements.

You're also wrong as to the common law requirements.

And stop trying to make Sardumbo happen.

[JoeFromtheBronx]

It would be Sardumb0 anyhow.

[JesseAz (Prime Meanster of Sarcasia)]

If you twist and torture the law enough it can mean whatever a dumb liberal activist lawyer wants it to mean.

Ironically sarcastro doesn't understand this is exactly the issue at hand.

[Sarcastr0]

You're just stamping your foot and yelling noooooo.

OK then; not sure why you bother posting.

[JesseAz (Prime Meanster of Sarcasia)]

Lol. Always hilarious watching you call people ignorant. Self awareness is not a strength of yours.

[JesseAz (Prime Meanster of Sarcasia)]

The legal errors were pointed out many times. Just because you lack intelligence doesn't mean it doesn't exist.

[Darth Buckeye]

Dershowitz said he expects the 1st District to affirm the trial court and that the Appellate Division will be the court to overrule the judgment. So the delay is stretching out the harm to Trump.

Dersh’s son died a few days ago. He will be sitting shiva for the next week or so (10 days total if I remember correctly). My condolences to Dersh and his family. He followed this case more closely than I did. I trust his judgment on this issue.

[David Nieporent]

Dershowitz said he expects the 1st District to affirm the trial court and that the Appellate Division will be the court to overrule the judgment. So the delay is stretching out the harm to Trump.

The First District is the Appellate Division.

(10 days total if I remember correctly).

Shiva is the hebrew word for seven.

[loki13]

First, and most obviously, my condolences to Dershowitz. Differences of opinion are one thing; losing a child is a terrible tragedy and no one should suffer through that. I did not know that, and I hope that Dershowitz and his family can find some manner of solace in the coming weeks and months.

However, I really wouldn't trust his judgment on this issue. Why would you? When he was regarded as an excellent lawyer (and it's been a long time since that was the case), it was for his work in criminal matter (criminal law) and specific constitutional issues (mostly, but not entirely, crimpro issues).

Even when he was a prominent criminal litigator (and it's been a long time) and not just a "name," that is trotted out to opine on any random legal issue in the news because people recognize the name, I wouldn't expect him to be an expert on this issue.

And as DMN has already noted, the First District is the Appellate Court in New York. Assumedly you mean the Court of Appeals (the "Supreme Court" of New York) ... which means that I am sure Dershowitz provided an analysis of the specific legal issues that NY's CoA would review and reverse on, given the level of review.

Or ... not.

[JoeFromtheBronx]

Checking, his son (Elon Dershowitz) died of a stroke and was 64.

I have read a few books by Dershowitz over the years that I found worthwhile, including about the Declaration of Independence. I didn't agree with all that he said, but they were worthwhile.

As you say, on this issue trusting his judgment is questionable.