By Steve BermanThe Ninth Amendment to the Constitution states that “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
The Seventh Amendment holds, in part: “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The State of New York tried Donald J. Trump, as co-defendant with the Trump Organization, for lying on bank loan applications, and inflating the stated value of certain real estate–in New York, the most sophisticated real estate market in the country. The evidence shows that Trump paid these loans, and the banks made their profit.
The judge, Arthur Engoron, a guy from Queens who relished taking down Trump, didn’t use a jury. The law that New York Attorney General Letitia James used doesn’t require one, and neither the state nor the Trump legal team requested it. The sentence, a $454 million fine, must be paid or a bond for the entire amount issued to give Trump lawyers the opportunity to appeal–otherwise, the accused may somehow dispose of his property and be unable to pay the state. The property consists of high-value, loan-encumbered iconic properties in New York and other places.
Judge Engoron’s original order made it impossible for any bank registered in New York to do business with Trump or his company. An appeals court overturned that part. But no bank or bond underwriter wants to cover a $454 million bond against properties that have their own loans, and in default would need to pay the State of New York in full. Trump’s team tried over 30 banks (how many could even put that deal together) and came up with bupkis.
So, the Constitution be damned. Letitia James, barring an appeals court granting Trump a lower bond amount–his team asked for $100 million–will violate the Seventh Amendment after the State of New York violated the Ninth Amendment. One judge ruled that Trump, in a crime with no natural or legal person named as victim, is guilty of crimes against the State of New York, and that one woman, Letitia James, may seize the assets of the defendant and dispose of them, to the detriment of creditors who have loaned against the value of that property, and place the proceeds from the liquidation of said property into the coffers of the State of New York.
The State of New York’s 2022-23 budget was $220.5 billion. Trump’s fine equals 2% of the Empire State’s annual budget. In order to get that money, AG James is executing what in Constitutional law is called a “taking.” A taking is illegal, except to pay the proceeds of a lawsuit. But this lawsuit is so large, and the amounts so substantial, and the trial so political, that how could anyone looking from the outside see the enforcement of this fine as anything else but a taking? It’s a taking under legal color, or as the term calls it: “lawfare.”
Letitia James can seize Trump’s property in one week if an appeals court doesn’t intervene. And each day, the interest on the judgement adds $112,000 to the total. The bond collateral would need to cover the judgement plus 20%, so it’s over $550 million. And Trump’s team has just one week to do a deal that over 30 bond underwriters wouldn’t touch. It’s not possible. This is the kind of deal that Tevye was offered when the tzar ordered the fictional Jewish residents of Anatevka to vacate in 48 hours, selling everything.
The United States has a Constitution. Patrick Henry, who famously said “give me liberty, or give me death,” would not support ratification of the Constitution until the Bill of Rights was also included. It seems the State of New York will throw both away. You might not like Trump, who once said the Constitution should be suspended for enormous crimes that never happened. But the State of New York is doing the exact same thing.
Follow Steve on Twitter @stevengberman.
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