This isn’t a judicial proceeding; it’s a partisan farce.
This isn’t a judicial proceeding; it’s a partisan farce.
T he Bolshevik bloc of the Democratic Party is having its fantasy prosecution of Donald Trump play out in real life in New York City. There, in state attorney general Letitia James’s civil-fraud case against the former president, the trial will begin today even though Trump was already found guilty and sentenced to corporate death last week by a robed apparat named Arthur Engoron.
What? Yeah, I know. It sounds crazy. But that’s because it is crazy — frighteningly crazy. Let me try to explain.
James picked up the scraps of a case Manhattan prosecutors declined to bring. Even Alvin Bragg, who had little hesitation in bringing a preposterous business-records-falsification indictment against Trump based on a legal hush-money payment that harmed no one, refused to charge a criminal-fraud case based on decades of Trump’s financial records — the holy grail that his predecessor, Cyrus Vance, and congressional Democrats chased for years, making two trips up to the U.S. Supreme Court in the process.
James, an ambitious progressive authoritarian who campaigned for office on a vow to weaponize the Empire State’s legal processes against Trump, decided to package the scraps into a lengthy civil complaint. After all, she had a secret weapon: New York’s Executive Law 63(12), which empowers an abusive prosecutor to put partisan enemies out of business without having to prove anything. Although this provision purports to outlaw “repeated” and “persistent” “fraud” and/or “illegality,” in reality, as I explained last week in a column for The Messenger:
The law doesn’t require a showing of harm. The state need not prove the defendant even intended to defraud anyone, much less actually defrauded someone. It need not be established that any creditor or financial institution even relied on the defendant’s misrepresentations, that those misrepresentations were material, or that anyone was actually fooled by them. The state just has to show that a defendant made false claims with enough “persistence” and “repetition” that at least two persons were “affected” — which, whatever it means, is not a synonym for “harmed.”
The state has thus used Trump’s financial records to establish that he significantly overstated the value of his assets in statements of financial condition (SFCs) that are customarily required in various business dealings (e.g., loans and insurance contracts). Characteristic of Trump, many of these embellishments are shameless — e.g., the fib that his 11,000 square-foot Trump Tower triplex was actually 30,000 square feet and valued at $327 million (at a time when the record sale of a comparably upscale dwelling in Manhattan was $88 million). Such whoppers are strewn through his SFCs, patently intended to project him as a multi-billionaire who became one of the world’s richest men though unparalleled business savvy (and never you mind the inherited wealth and all those bankruptcies).
But this was for political consumption and the burnishing of celebrity. In the league of sophisticated financial actors in which Trump plays, where corporate departments are dedicated to valuation analysis because that’s the bread-and-butter of finance, nobody took this nonsense seriously. Indeed, Trump even included a “worthless clause” in his SFCs which, in so many words, warned that they were apt to be, you know, somewhat less than perfectly accurate. Many of the financial institutions that did business with Trump did so for years, and knew exactly the cat they were dealing with. They made loans and indemnified Trump because they knew, based on their own expertise and experience with him, that he was quite wealthy (even if not as wealthy as he claimed) and that he would pay up.
Which he did, reliably — that’s why even elected-Democrat prosecutors wouldn’t charge him with fraud . . . there being no victims.
By stark contrast, Tish James need not show victims or even fraudulent intent. Under the civil law, she need not prove anything beyond a reasonable doubt. And as she had good reason to expect she’d get a complacent judge in the New York State “judicial” system, where partisan lawyers, if they prove hacky enough, get to be elected partisan-hack judges in the blue state’s one-party political hegemony. James hit the jack pot with Judge Engoron, a notorious and unabashed partisan Democrat.
No sooner did he catch the case than Engoron decided James had proved it just by filing it (Trump being, in his insight on her views, “a bad guy”), so he imposed a monitor. In the 35-page diatribe he issued last week, he not only found Trump liable on the main cause of action (the §65(12) claim); for good measure, he fined Trump’s lawyers $7,500 apiece (ostensibly for making frivolous arguments, mainly for declining to pretend that Engoron’s hackdom is actually legal acumen).
Most significantly, the good judge imposed the corporate death penalty: putting Trump, his adult sons, and the Trump Organization out of business, taking away their state-issued business licenses, calling for the appointment of receivers to oversee the dissolution of Trump’s business entities, and continuing to subject him to monitors.
And now, after all that, the trial begins.
Trial for what? What’s left? Well, in addition to the §65(12), James also brought six causes of action in which civil-fraud claims are based on alleged violations of criminal laws. That is, this is the criminal case that the prosecutors assessed was not strong enough to bring. James has the benefit of a civil burden of proof (preponderance of the evidence) and Engoron, rather than a jury, as the finder of fact. But she will still have to prove such criminal-law elements as fraudulent intent and materiality.
It is estimated that this trial will take more than two months — meaning it could roll right into the criminal trials on other indictments Democrats have brought against Trump, as well as the GOP primaries. Given the stakes, Trump will be in attendance for at least the first week (it’s a civil case, so his attendance as a defendant is not required), and he is likely to be the most critical witness in the case — highlighting its political as well as legal ramifications.
As the Rolling Stones say, “Go ahead, bite the Big Apple . . . don’t mind the maggots!”