'I don't think you make them happy,' a Columbia University law professor said of the potential consequences from the former president's constant attacks on the legal institution
Donald Trump’s five-minute courtroom tirade on Thursday against the judge presiding over his civil fraud case may not only antagonize the person with the sole discretion to end his future in New York’s real estate industry.
The remarks might also harm the former president's chances of overturning the most severe decree on appeal, as well, legal experts tell The Messenger.
“I think appellate courts don't like the institution of courts and justice and the rule of law impugned the way Trump does,” Columbia University Law Professor John Coffee noted in a phone interview. “If you keep saying everything in New York is a travesty, even though it's been done under the supervision of the appellate division, I don't think you make them happy.”
That Trump’s civil fraud trial is appellate court-bound is a virtual certainty.
In September 2023, weeks before trial began, Manhattan Supreme Court Justice Arthur Engoron issued an order holding Trump, his sons Eric Trump and Donald Trump Jr., and ex-business associates Jeff McConney and Allen Weisselberg liable for fraudulently inflating the former president’s wealth on financial statements to the tune of billions of dollars. That ruling resolved the first of seven claims in the lawsuit, and it ordered the cancellation of any business certificates owned by Trump, his sons, and the two ex-business associates in the state of New York.
Trump appealed that decision, in a controversy that remains pending before New York’s Appellate Division, First Department.
If the judge finds liability on the remaining six counts, New York Attorney General Letitia James now wants Trump to pay roughly $370 million and ban the former president, Weisselberg, and McConney for life from the state’s real estate industry. The attorney general seeks a lesser five-year ban on Eric Trump and Donald Trump Jr.’s participation in the industry. Closing arguments on Thursday suggested that Engoron was skeptical that the state proved its case as to Trump’s sons.
- Judge Denies New York AG’s Request to Block Trump’s Expert Witnesses
- New York v. Trump Day 22: Don Jr.’s Departure; Eric Trump’s Entrance, and End-of-Day Outbursts
- Trump’s Top Defense Expert Once Backed New York AG — And a Judge Found Him ‘Unpersuasive’
- New York AG Invokes Famous Watergate Question at Close of Trump’s Civil Fraud Case
- Trump Calls New York Trial ‘Disgraceful,’ Says He’s Been Defrauded
- New York AG Skewers Trump’s ‘Illegal’ Actions as $250 Million Fraud Trial Kicks Off
“What evidence do you have — I haven’t seen it — that they knew that there was fraud?” the judge asked.
For the Columbia professor, the judge’s blockbuster remark signaled that the former president’s business empire could simply shift to new management.
“If Trump is sort of expelled from the temple, the other two could run it,” Coffee said, referring to Eric Trump and Donald Trump Jr.
At minimum, the corporate paperwork of the Trump business empire might experience a shake-up: Engoron’s pre-trial dissolution order held the sons liable under New York’s Executive Law 63(12), often described as a consumer protection law allowing the attorney general to hold corporations accountable for malfeasance.
All seven claims in the lawsuit against Trump, his sons, and former business associates level different accusations under the same statute. The judge found that only the first, resolved before the trial, did not require the attorney general to prove intent and materiality — essentially, a showing that Trump’s allegedly fraudulent financial statements mattered to the banks and insurance companies receiving them.
The remaining six claims against Trump have a higher evidentiary standard because they accuse the former president of violating New York penal laws prohibiting falsifying business records, issuing false financial statements, and committing insurance fraud.
The Columbia professor noted that intent is one of the hurdles that might trip up the attorney general for Trump’s sons.
“In the event that the judge does find that the two sons didn't have the requisite wrongful intent, there's no reason that they can't continue to run the business,” Coffee said.
Trump and his lead attorney Christopher Kise have characterized the attorney general’s application of New York’s Executive Law as unprecedented, but James’s office itself has deployed the statute against many other defendants than Trump: Northern Leasing, a company shuttered for defrauding small businesses; JUUL, the e-cigarettes company; Richmond Capital, in a predatory lending case; and the operators of four New York nursing homes accused of neglect.
Syracuse University Law Professor Gregory Germain agrees, however, that the statute could be “dangerous” in its application, if an appellate court upholds the view that Trump’s New York businesses could be dissolved before the state proved its case.
“I think it's unlikely that a court carefully considering the issue would say that the attorney general has this kind of power to shut down people's businesses and award disgorgement for falsehoods that were not believed, relied on, and didn't cause anybody any damages,” Germain told The Messenger.
Those were the fault lines of the 14-week trial, where the attorney general argued financial institutions like Deutsche Bank relied upon massively misleading portraits of Trump’s net worth — and they were damaged by awarding him much lower interest rates than they otherwise would have granted. Trump’s legal team disputes this, but the judge’s factual findings will be difficult to overturn on appeal.
“Findings of fact on appeal can only be overturned if they're clearly erroneous — if there's no basis in the record for them,” Germain noted.
Attorney Tristan Snell, a former assistant New York attorney general who was part of the team that took down the Trump Foundation, noted that the Northern Leasing case set a precedent of revoking corporate certificates for “repeated and persistent fraud.”
“My take on Trump is that it absolutely is appropriate here, not only because of the nature of the fraud at issue in this one case alone, ” Snell said, noting that the judge found the former president inflated his assets over the course of a decade, on different properties and different alleged ruses.
According to the state government, The Trump Organization treated rent stabilized apartments as unrestricted on its Park Avenue property; treated Mar-a-Lago as a private residence when its deed mandated it be a private club; cited a bogus market capitalization rate on its 40 Wall Street skyscraper; treated cash beyond their control as liquid assets — all to dramatically spike the former presidents net worth by billions of dollars for years.
Beyond this case, however, Snell said he believes Engoron — and the appellate courts reviewing him — may “open up the aperture” to look at other fraud accusations surrounding Trump and his entourage. That includes a prior New York attorney general’s lawsuit that shut down the Trump Foundation, the former president’s eponymous charity; Trump University, which also under a crush of litigation labeling it a “scam”; and the fact that his lieutenant Weisselberg is now a convicted felon in connection with the Trump Foundation.
“I think if you add it all up, it definitely in my view shows repeated and persistent fraud and illegality,” Snell added. “I think that the appellate courts in New York are going to be well within their bounds to find that cancellation is the appropriate remedy here.”
That Trump has attacked Engoron and his principal law clerk, inviting a gag order and multiple sanctions, and has taken every opportunity to insult the judge in open court and the public sphere, hands the appellate court another justification to affirm, according to every expert interviewed for this article.
“Anything that he did while in court is fair game, and also the things that he said out of court to be threatening to the judge and his clerk — all of that is fair game,” Snell said. “All of that is stuff that's definitely going to be considered as part of a pattern and practice of complete disrespect for the law in New York State.”
James’s assistant Kevin Wallace used that rationale in his closing arguments, arguing that a heavy punishment is necessary because Trump still claims he’s “blameless.” In a five-minute courtroom tirade on Thursday, Trump cast himself as the victim of a political “witch hunt” supposedly engineered by President Joe Biden, even though it is a state case.
“I can easily imagine Justice Engoron citing Trump’s flouting of the Court’s orders regarding the scope of his closing remarks to buttress whatever financial penalties and industry bar he imposes, stating that his conduct demonstrates the need for deterrence and incapacitation,” former federal prosecutor Mitchell Epner told The Messenger.
Engoron said he would try to issue a ruling before Jan. 31, 2024 — but there was no “guarantee” he would complete his work by that time.
