Below is my column in The Hill on the $355 million verdict against Trump and his corporation in New York. The damages in my view are excessive and absurd after the court acknowledged that no one lost a dime in these exchanges. Indeed, the “victims” wanted to do more business with Trump and made handsome profits. New York Gov. Kathy Hochul has rushed to assure businesses that there is “nothing to worry about” after the corporate public execution of Trump and his company. The assumption seems to be that you have nothing to fear from confiscatory actions unless you are Trump in New York. That is precisely why the New York Court of Appeals should act to redeem the integrity of the legal system by setting aside or drastically reducing this award.
Here is the column:
In laying the foundation for his sweeping decision against former President Donald Trump, Judge Arthur Engoron observed that “this is a venial sin, not a mortal sin.” Yet, at $355 million, one would think that Engoron had found Trump to be the source of Original Sin.
The judgment against Trump (and his family and associates) was met with a level of unrestrained celebration by many in New York that bordered on the indecent. Attorney General Letitia James declared not only that Trump would be barred from doing business in New York for three years, but that the damages would come to roughly $460 million once interest was included.
That makes the damages against Trump greater than the gross national product of some countries, including Micronesia. Yet the court admitted that not a single dollar was lost by the banks from these dealings. Indeed, witnesses testified that they wanted to do more business with Trump, who was described as a “whale” client with high yield business opportunities.
Undervaluing and overvaluing property is a longstanding practice in New York real estate. The forms submitted by the Trump organization cautioned the banks to do their own estimates and the loans were paid in full and on time. Yet, the New York law used by James is a curiosity because it does not actually require a victim. Indeed, everyone can make ample profits and still allow for an investigation into “repeated fraudulent or illegal acts.”
Having campaigned on bagging Trump on any basis, James turned the law into a virtual license to hunt him down along with his family and his associates.
Engoron proved the perfect judge for the case. The opinion itself seems almost cathartic for the jurist who struggled with Trump inside and outside of court. In the judgment, Engoron fulfilled Oscar Wilde’s rule that the only way to be rid of temptation is to yield to it. He ordered everything short of throwing Trump into a wood chipper.
The size of the damages is grotesque and should shock the conscience of any judge on appeal. Even if the Democrat-appointed judges on the New York Court of Appeals were to ignore the obvious inequity and unfairness, the United States Supreme Court could intervene.
State courts tend to get a significant amount of deference in the interpretation of their own laws. After all, if New York wants to turn Wall Street into a remake of “The Hunger Games,” it has only itself to blame as other businesses flee the state.
The impact on New York business is likely to be dire. New York is already viewed as a hostile business environment, with the top end of its tax base literally heading south as taxes and crime rises. This draconian award is only going to deepen concerns over the arbitrary application of the law by figures like James, who previously sought to disband the National Rifle Association. (She has shown less interest in cracking down on liberal organizations like Black Lives Matter or the National Action Network of Al Sharpton despite their own major financial scandals.)
As James gleefully uses this law to break up a major New York corporation, it is hard to imagine many businesses rushing to the Big Apple. This follows Democratic politicians such as Rep. Alexandria Ocasio-Cortez (N.Y.) campaigning against Amazon seeking to open new facilities in the city. After this week, drawing new businesses to the city is going to be about as easy as selling country estates during the French Revolution.
The one hope for New York businesses may be the U.S. Supreme Court. Despite the deference afforded to the states and their courts, the court has occasionally intervened to block excessive damage awards.
For example, in 1996, the justices limited state-awards of punitive damages under the Due Process Clause of the Fourteenth Amendment. In that case, BMW was found to have repainted luxury cars damaged in transit without telling buyers.
An Alabama jury awarded $4,000 in compensatory damages for the loss of value in having a factory paint job, but then added $4 million in punitive damages. Even when the Alabama Supreme Court reduced that to $2 million, the U.S. Supreme Court still found it excessive. Even liberals on the Court such as John Paul Stevens and Stephen Breyer agreed that such “grossly excessive” awards raise a “basic unfairness of depriving citizens of life, liberty, or property, through the application of arbitrary coercion.”
The court may find almost half a billion dollars in damages without a single lost dollar from a victim to be a tad excessive.
That prospect will not dampen the thrill-kill environment in New York this week. In electing openly partisan prosecutors such as James and District Attorney Alvin Bragg, voters have shown a preference for political prosecutions and investigations.
In “Bonfire of the Vanities,” Tom Wolfe wrote about Sherman McCoy, a successful businessman who had achieved the status of one of the “masters of the universe” in New York. In the prosecution of McCoy for a hit-and-run, Wolfe described a city and legal system devouring itself in the politics of class and race. The book details a businessman’s fall from a great height — a fall that delighted New Yorkers.
It is doubtful Trump will end up as the same solitary figure wearing worn-out clothes before the Bronx County Criminal Court clutching a binder of legal papers. But you do not have to feel sorry or even sympathetic for Trump to see this award as obscene. The appeal will test the New York legal system to see if other judges can do what Judge Engoron found so difficult: set aside their feelings about Trump.
New York is one of our oldest and most distinguished bars. It has long resisted those who sought to use the law to pursue political opponents and unpopular figures. It will now be tested to see if those values transcend even Trump.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
The FBI brags that “The process is the punishment”. It certainly is that. And in America 2.0 it also serves to bankrupt defendants with impunity.
And SCOTUS is sitting there letting some pip-squeak decide our election, while they smugly fiddle under their robes.
Assuming the enemies case falls apart, how will Trump as president get his money back? How will America ever get its elections back? Our election have been turned over to hackers. How will confidence in American justice come back.
It won’t. “The great experiment” is failing. The Just-Us system has poisoned it.
“The court may find almost half a billion dollars in damages without a single lost dollar from a victim to be a tad excessive.”
This is the most understated statement that cannot be overstated.
New York has become its own banana republic.
Dear Mr. Turley,
When one of your columns is linked to Citizen Free Press, I usually read that first. I do so, because you seem to be one of the better voices of reason in these disturbing times.
In the case of this Latitia James case against Trump, I find this article quite instructive. However, I wonder if one day you might provide a brief on the Eighth Amendment in this type of case?
“Lawfare” is wrong because it discredits the law. Furthermore by attacking a presidential candidate with the intent of driving him off the ballot also discredits elections. The stakes are much higher than the fate of one individual such as Trump. It’ll be interesting to see whether the New York State appeals court or the US Supreme Court understands these stakes. I see these serial (and probably coordinated) attacks on a major presidential candidate using the law of the land as a political weapon, to be a major inflection point. Lawfare in 2024 may prove to be similar in effect to Bloody Kansas or John Brown’s raid that had so much impact on igniting the 19th century Civil War. God help us.
It’s a circus from the Chaotic Libertarians… i think James is complicit with Trump, or she may have been chosen because she’s absolutely delusional. Anyway, the Judge sounds like a replica of the Colorado “Supremes” begging SCOTUS to step in. I think Trump is more popular among our elites on both sides of the aisle than our press elite will show.
for people with a bit of memory, both Trump and Obama, two clowns of Libertarian allegiances, with nuances in shade, both dancing to the tune of Ayn Rand, promoted the idea that white collar crimes should never be sentenced to time in jail or prison…
This courts appear complicit in pointing to aberrance of the Law. Trump, while playing “holo-law” ‘s victim, is in fact making the case for the “injustices” our leaders “suffer” from the current justice system. Effectively, 350 Millions for something where there is no victims sounds excessive. But one must consider that Libertarians, with tools like Cryptos, will create aberrant situations which have extreme far from themselves negative spill overs without any apparent visible victims. Why is the Judge and the DA presenting their case in such an idiotic manner, when an intelligible argument could be made. For example, creating excessive valuations creates a commercial real estate boom which eventually creates a residential boom. But the boom has fictitious benefit in the residential market because owners are somewhat captive. They don’t get wealthier because value is not based on a stream of future income, yet they fall victim to increased taxation. We should have all learned this in 2008-09. But we didn’t. Should Trump be punished… not in this way, but warning lights of cascading effects of shenanigans are the responsibility of the Press which never does its job properly, so compromised and corrupt and greedy it is. In fact, it”s the opposite, anytime the press can report “record levels” of anything, they get all erected by it. Because they, as our leaders, want total reversal of constraints on complicit dubious dealings, excesses, ill faith and corruption, price manipulations, trade washes, of which plenty will abound in the future.
But as Imelda Marcos so elegantly put it 40 years ago… “Everybody knows The Rich don’t pay taxes, the little ones do…” or the idiots.. or the “Believers”… or the future generations…
This was written by an AI bot. You can tell from several key tells, but sentences like this are a dead giveaway;
“Should Trump be punished… not in this way, but warning lights of cascading effects of shenanigans are the responsibility of the Press which never does its job properly, so compromised and corrupt and greedy it is.”
Phrases like “warning lights of cascading effects” are AI’s attempt at interpreting colloquialisms and sayings and various phrases it doesn’t quite get (but thinks it does). For example an AI bot might interpret “you can’t win them all” as “one doesn’t prevail in every attempt”.
The entire sentence read as a whole is gibberish; – “not in this way, but warning lights of cascading effects of shenanigans are the responsibility of the Press which never does its job properly, so compromised and corrupt and greedy it is. ” –
It means nothing. Sad to see AI bots spamming the blog. They’ll get better as time goes on and in a few years we may not be able to tell them from the real thing. Heck I imagine most people can’t already. You gotta look for it now, and most people don’t know what to look for.
I assume every person writing as Anonymous is a bot.
Hochul basically intimated that this law only applies to Trump. And, James ran on going after Trump. So, there are two issues for SCOTUS.