The Potentially Unprecedented Punishment of Trump

An investigation by the Associated Press discloses no — zero — precedent in this state for what New York’s attorney general wants done to the 45th president.

Brendan McDermid-Pool/Getty Images
President Trump at New York State Supreme Court on November 6, 2023. Brendan McDermid-Pool/Getty Images

The extraordinary nature of the New York attorney general’s attempt to take away from President Trump the company he and his family built is well marked today by the Associated Press. Its review of “nearly 150 reported cases” of business fraud in New York since 1956 found that “nearly every previous time a company was taken away, victims and losses were key factors.” Yet even absent any victims or losses, Mr. Trump’s business could be “dissolved.”  

That’s what Attorney General Letitia James threatens. The outcome, though, would not only be unusual, but unprecedented.  Since New York enacted its law, per the AP, “it’s the only big business found that was threatened with a shutdown without a showing of obvious victims and major losses.” Gotham’s annals are rich in real estate wheelings and dealings, and it is no small thing to mount a search for a precedent and come up with a big zero.  

Stunning, actually. The AP’s research discloses that “businesses were taken over almost always as a last resort to stop a fraud in progress and protect potential victims.” They cite a “phony psychologist” and a “fake lawyer.” Here, though, Mr. Trump’s primary lender, Deutsche Bank, “never complained, and it’s unclear how much it lost, if anything.” Bank officials, under oath, couldn’t swear that Mr. Trump’s financial statements had any impact.

New York’s Executive Law 63(12) — that’s the one being used against Mr. Trump — requires only “repeated fraudulent or illegal acts” and not a showing of harm. Yet it appears as if that stipulation has been, as Shakespeare quipped, “more honored in the breach than the observance.” That is because the AP “found that victims and losses were factors when it came to deciding whether to take over a business.” Meaning, Mr. Trump would be an exception.

That’s something to keep in mind amid all the talk in the bien pensant salons about how no one is above the law. The question is: Why should Mr. Trump, or anyone, be below the law? We spoke to a real estate attorney, Adam Leitman Bailey. He has faced off with Mr. Trump in court — and, he tells us, bested Mr. Trump in a settlement. He calls the possibility of this punishment, though, a “travesty of justice” that “harms the fabric of our democracy.”

Mr. Leitman Bailey asserts that Executive Law 63(12) was “not made for this type of case. It is made for small-time criminals.” He surmises that Ms. James was motivated to pursue this path because she “hates Trump.” Mr. Leitman Bailey tells us that Ms. James eschewed charging Mr. Trump with a more conventional fraud statute because under 63(12) “You don’t need a victim or a showing of intent, or evidence of fraud. You just have to show up to win.” 

Here, Mr. Leitman Bailey observes, “all money that was borrowed has been paid back” and “there have been no victims.” By choosing this statute, the attorney explains, Ms. James not only stacked the deck, she rigged the game. We wonder if this startling departure from precedent deters or drives the presiding judge, Arthur Engoron. He has promised a ruling by Wednesday. Mr. Trump’s antagonist, General James, seems in a hurry, too.

General James wants the 45th president to pay $370 million in damages and be banned from business in New York. She has suggested that an independent monitor be appointed to run the business that bears Mr. Trump’s name. We imagine that task is harder than it looks. It is worth recalling that federal prosecutors passed on this case, and that Ms. James pursued it as a civil one, meaning that the burden of proof was dramatically reduced. 

That choice means that by a mere “preponderance of the evidence” Mr. Trump could be stripped of his life’s work. All via summary judgment, by a single judge, before the trial even began. One legal sage, William Thomas, tells the AP that “those who want to see Donald Trump suffer by any means necessary risk ignoring the very commitment to a rule of law that they accuse him of flouting.” Why are the rest of us supposed to imagine that this is not political?

The New York Sun

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