"Cutting Down the Law to Get at the Devil," Redux

Can the perpetrators of the persecution by lawfare stand in the winds that will blow now?

Composit: Getty Images, EPA, AP

Approximately eighteen months ago in February 2024, I published Cutting Down the Law to Get at the Devil. That article showed that “New York State Attorney General, Letitia James, aided and abetted by a political hack in judicial robes, Arthur Engoron, are obsessed with their view of Donald Trump as the devil whose election would destroy democracy.” Like the innumerable other attempts to twist the both the law and the judicial system to destroy their political opposition, their crusade failed in its objective. The more they prosecuted him, the more votes he got. Their most recent failure is the reversal of the corrupt trial court’s unconstitutional half-billion dollar fine against Trump. Any reasonable person not blinded by hatred of the President combined with political ambition could have seen this coming.

A history of persecution by lawfare

The lawfare against President Trump has been widespread and unrelenting: The silly RICO suit by the lovebirds in Georgia; innumerable court filings and acts by rogue officials attempting to deny voters even the opportunity to vote for Trump by striking him from state ballots; the swat teams raiding Mar-A-Lago; the unconstitutional jihad by purported federal prosecutor Jack Smith; and much, much more.

This particular chapter in Trump’s persecution got underway when Letitia James, in her best Lavrentiy Pavlovich Beria imitation, promised to get Trump for something, (she never said what) if voters would just elect her as New York’s Attorney General. It then continued, as promised, with her unprecedented suit against Trump, his companies, his son, Eric, and others for supposedly fraudulent financial statements. Those financial statements were given to sophisticated lenders such as Deutsche Bank to obtain loans to acquire and develop various properties. The properties were pledged as collateral to secure payment of the loans. The victimless fraud allegedly was that Trump and his accountants inflated the value of some of his properties on his own financial statements.

The James/Engoron theory was that this supposedly was “fraudulent” despite the fact that all Trump’s agreements with the lending banks required them to perform their own analyses of the collateral, despite the fact that Trump had expressly advised them in writing not to rely upon his valuations but to do their own due diligence, and even though this was a victimless “crime” because all the lenders were paid on time and in full.

It was a bogus case from Day 1. But to no one’s surprise, in a non-jury trial the conflicted and unethical Engoron convicted Trump and assessed a record-setting fine against him, his companies, his son Eric, and other employees. There were, however, no compensatory damages awarded, because neither the State of New York nor any of Trump’s lending banks had suffered any damages as a result of the fraud alleged by James and the State of New York.

Engoron’s unconstitutional punitive fine

James and Engoron were dedicated to the confiscation and destruction of Trump’s wealth and businesses. Even before she took office as AG she stated that she had her “eyes on Trump Tower.” To accomplish this goal via their lawfare, they ignored U.S., Supreme Court precedent governing punitive awards; they collaborated in seeking and imposing a fine of $355 million against him.¹ With accrued interest, by August that fine had ballooned to over a half-billion dollars.

There has never been any doubt that this fine was excessive under the Eighth Amendment to the U.S. Constitution, which provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In my February article just two weeks after Engoron attempted his judicial coup via his enormous fine and almost a year-and-a-half before it was reversed, I showed that Engoron had “cut down the law” and constitutional limits on fines and punitive awards. He did that by ignoring “Supreme Court precedent limiting punitive damages to get the Devil Trump.”

One of many illustrations of this limitation is the Supreme Court’s decision in a well-known case, BMW v. Gore (1996). That case involved actual damages of $4,000. The Court held that punitive damages of $2 million were “gosssly excessive” and therefore violated the Constitution.

Similarly, in State Farm v. Campbell (2003 the Supreme Court vacated a punitive damages award of $145 million where the actual, compensatory damages awarded were $1 million. The Court cautioned lower court judges that “in practice, few awards exceeding a single digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

There is a great deal more case law on this issue, but those citations give you the overall picture.

The New York Appellate Court’s ruling

Five justices of New York’s Appellate Division wrote three separate opinions which are published here in one 323-page document. Each of them agreed with some of what their other colleagues wrote but disagreed with other parts. However, they were unanimous one point: The humongous monetary award violated the Constitution.

It was not even a close call. By the time of the appellate court’s ruling, that fine had grown to over a half-billion dollars against zero compensatory damages. This ratio of ˃500,000,000 to 0 is not remotely acceptable under established constitutional law. BMW v. Gore Court held that a 500:1 ratio was “grossly excessive.”

About the kindest thing that the Appellate Division said about the fine was in the opinion by Justices Higgitt and Rosado that “the award constituted a grossly disproportionate and excessive punitive fine violating the excessive fines and due process clauses of the New York and US Constitutions.” Justice Friedman added that it was “completely disconnected from any harm conceivably caused by the conduct at issue.”

The winds, they are a’ blowing now.

After first finding that the fine was “grossly excessive,” Justice Friedman correctly noted that “it seems to have been intended to destroy President Trump’s business organization.” He then said,

In essence, the award amounted to something close to a commercial death penalty. There can be little doubt that something other than a passion for justice and fair play lies behind the imposition of such punishment, on the part of both those who sought it and the court that imposed it. Everyone who lives or does business in New York has a right to expect better from the Attorney General and a court of the state that considers itself the business capital of the world.

[W]hat emerges from this Court’s vacating the $500 million disgorgement award, with which I concur, is the frustration of what appears to me to have been the Attorney General’s true aim in bringing this action. Plainly, her ultimate goal was not “market hygiene,” as posited by Justice Moulton, but political hygiene, ending with the derailment of President Trump’s political career and the destruction of his real estate business. The voters have obviously rendered a verdict on his political career. This bench today unanimously derails the effort to destroy his business.

Read that again, please. Engoron and James were not concerned with “justice and fair play.” They had other motives: the “the derailment of President Trump’s political career and the destruction of his real estate business.” What are the ramifications for Engoron and James of their totalitarian-like misconduct?

It is notoriously difficult to punish judges and prosecutors for misconduct, even when it leads to the conviction of an innocent person. But there are a great many people who believe that truly egregious criminal behavior must be met with a response that will dissuade like conduct for generations. Some of them are in the FBI and DOJ. They even believe that “no one is above the law,” as we were repeatedly reminded during Trump’s trial.

Ironically, James apparently appears to be the target of an investigation for falsifying loan applications to take advantage of lower interest rates. Egoron reportedly is the subject of judicial ethics complaints, but good luck getting the New York bar to act. Could there be more?

Do Engoron and James have anything else to worry about or are they off scot free? Or will they be held accountable for cutting down the protections of American law to destroy their perceived political enemy?

Robert Bolt sounded a cautionary note about this in his masterful morality play, A Man for All Seasons. There he told the story of Sir Thomas More, Lord Chancellor of England, who was in mortal danger because he refused to bless Henry VIII’s desire to divorce his wife, Catherine of Aragon, in order to marry the unfortunate (as she proved to be) Anne Boleyn. More’s daughter, Margaret and her husband, Roper, urged him to fight back by arresting his enemy, Richard Rich, who had falsely accused him of treason. More refused, saying that even “if he was the Devil himself,” Rich should remain free “until he broke the law!”

ROPER then countered: So now you'd give the Devil benefit of law!

MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?

ROPER: I'd cut down every law in England to do that!

MORE responded with a classic for the ages:

“Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down--and you're just the man to do it--d'you really think you could stand upright in the winds that would blow then? Yes. I'd give the Devil benefit of law, for my own safety's sake.”

Engoron and James cut down the law to get Devil Trump. They sought to deny him “the benefit of the law.” They failed.

Do they think they can stand upright in the winds that will blow now?

1. Legally the award was justified as a recoupment of supposed ill-gotten profits. But it was intended as a punishment and is treated as a “fine” for Eighth Amendment purposes. That is how it will be referred to here.