The one hope for New York businesses may be the U.S. Supreme Court
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.
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