This past week Judge Arthur Engoron of New York State Supreme Court, the lowest level of courts of general jurisdiction, levied a mammoth fine of some $370 million, including interest, against Donald Trump for purported fraud under a New York statute.
The term fraud is used loosely since no one was defrauded, an element of a cause of action under common law fraud, and no one was harmed, also an element, and there was no proof of reliance, another element. This is fraud "in the air," as the saying goes: no harm by no one against no one for no loss by anyone.
No one testified that they lost a penny from the purported fraud, or that they would not have wanted to deal with Trump as a customer. No one came forward to complain, except Attorney General Letitia James. But more about this modern-day Torquemada later in this column.
Previously, the same judge ordered dissolution of Trump’s businesses in the state, under the supervision of a receiver. That order was stayed by the appellate court pending appeal.
THE $355M TRUMP CRAZY CIVIL COURT DECISION HAS ALL KINDS OF UNEXPECTED CONSEQUENCES
Following the order of dissolution, The Associated Press reviewed nearly 150 reported cases under the statute used to punish Trump and stated "that nearly every previous time a company was taken away, victims and losses were key factors. Customers had lost money or brought defective products or never received services ordered, leaving them cheated and angry."
Angry, although not a word to describe a single customer, is Trump, and he has every right to be. But it is also a word, along with outraged, that applies to a range of commentators, not all allied with the former president.
Professor Jonathan Turley called the $370 million judgment confiscatory, extreme and abusive. Professor Steven Calabresi termed it a travesty and an unjust political act. The subhead for his online commentary employed the term "Stalinist." Both law professors are right.
Because the judgment does not relate to any loss, the $370 million is not, properly understood, violative of the prohibition against grossly excessive punitive damages. It does fall, however, directly within the excessive fines clause of the Eighth Amendment to the United States Constitution.
In an opinion especially illuminating to understand the wrongdoing by the attorney general and Judge Engoron, the U.S. Supreme Court held in Timbs v. Indiana (2019), that the excessive fines clause is an incorporated protection applicable to the states (all of them, even New York) under the 14th Amendment to the U.S. Constitution.
The Supreme Court stated that the clause "traces it venerable lineage back to at least 1215" and the Magna Carta. "Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay." These remain concerns.
As the Supreme Court stated in Timbs: "For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago."
And excessive fines are a cheap source of revenue, in the case of Trump being a lot of revenue, especially for a state that has been bleeding population and high-income taxpayers.
The virtue of an Eighth Amendment challenge is that it places the political prejudices of the attorney general and the supine Judge Engoron relevant and front and center. James made getting Trump a centerpiece of her campaign for the post she now holds. All of her statements attacking Trump are now fodder for the inevitable appeal and attendant stay.
With this Stalinist judgment, it is no longer Trump who is on trial, but the New York state (in)justice system. Judge Engoron, New York’s version of the infamous Judge Ito, has brought the New York courts into disrepute.
The only way to restore even a modicum of confidence that New York will not destroy those with whom it disagrees is for the appellate tribunals to take immediate action to vacate the judgment in its entirety as bringing into disrepute the state’s courts. If the case survives even a day longer than tomorrow, Judge Engoron should be removed from the matter and replaced with a jurist who understands law and justice.
Finally, this is not the only case that New York prosecutors have levied against Trump. Manhattan District Attorney Alvin Bragg has indicted Trump for what is almost universally condemned as a legally meritless alleged crime.
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While it is beyond the brief of this column to discuss it in more detail here, it does seem that cooperation by Bragg and James relating to their respective actions against Trump could potentially support a lawsuit by the former president under 42 U.S.C. 1983 and 1985 for violations of his constitutional rights.
Congress has the power to investigate the possibility of collusion by these two New York officials, and should do so promptly. They owe it to not only to Trump, but also to all of us, wherever we might live.
