“Curiouser and curiouser.” Those words from Alice in Wonderland seem the only apt description of the case unfolding in the New York courtroom of Justice Arthur F. Engoron over the alleged fraudulent practices of former president Donald Trump, his family and his business.
The charges brought by New York State Attorney General Letitia James were curious from the start. James had run for office on the pledge that she would hunt down Trump, a promise that apparently thrilled many New Yorkers. However, she brought a civil case based on Trump over- and under-estimating the values of his properties.
As some of us have previously stated, there do appear to have been assets that were inflated or deflated in value. That may be a common practice in New York real estate, but it is not a good practice. Indeed, I believe a penalty is warranted for such practices, but those should be uniformly imposed and would be a fraction of the fortune sought by James in this case.
The evidence shows that banks made money on these loans, which were paid off either early or on time. In fact, none of the banks complained about the Trump organization’s estimations, which were accompanied by a warning that the banks should not rely on those estimates.
Moreover, James is seeking to kill a corporation once viewed as iconic in New York, not just by denying the certificates for the Trumps to do business in the city but by imposing $250 million in penalties for money that no one actually lost.
That all became curiouser this week when two bankers were called by the defense. Rosemary Vrablic and David Williams worked on Deutsche Bank loans to the Trumps for years, and they testified that the banks made millions and viewed Trump as a much-sought-after “whale” client — what Vrablic described as a “very high net-worth individual.”
Williams testified that net worth is “subjective” in such documents as property valuations and are offered as mere “estimates.” It is not uncommon for a bank’s estimates to differ from a client’s.
Vrablic wrote emails at the time about the benefits to the bank in dealing with the Trumps, as well as pitches to the family that the bank was happy to extend conditions which allowed added benefits of “flexibility, rate and service” to get the business relationship.
Justice Engoron seemed irritated by the testimony, however, and when Trump counsel asked why the bank was so eager to secure future loans, Engoron snapped back: “They’re trying to make money. Why wouldn’t they be interested?”
The real question here is James’ overriding interest in killing the company. Engoron has already declared that Trump is guilty of fraud, and he is now weighing the massive penalties sought by James — and eagerly supported by many New Yorkers.
That eagerness could prove the court’s undoing, however. Some of Engoron’s earlier orders are currently under review. Yet it is James’ demand for the effective dissolution of the corporation and $250 million in penalties that could push this case beyond the curious to the unconstitutional.
It is relatively rare for civil damages to trigger constitutional review, and it is still far from clear that this case will rise to that level. The New York law is unique in allowing massive penalties without the loss of a single dollar by a bank. However, James wants dissolution and crippling damages, and that could trigger a higher-court review.
In 1996, the U.S. Supreme Court decided a case, BMW of North America v. Gore, striking down a punitive damage award. The case involved the practice of the company to repair and repaint cars damaged in transit without telling the customers. The jury in the original trial awarded $4,000 in compensatory damages for the lost value to the car in not having a factory paint job and other damage; it then imposed $4 million in punitive damages for the company’s dishonesty. Even though the Alabama Supreme Court previously reduced the punitive award by half, the U.S. Supreme Court still found that the award violated the Due Process Clause as “grossly excessive.”
While the High Court agreed on the need for punitive damages to deter future misconduct, it found the ratio between compensatory and punitive damages to be too great.
One distinction between that case and the Trump proceeding is that the Supreme Court found no intentionally false statements by BMW — but effective dissolution of Trump’s business and a quarter-billion dollars in damages may raise analogous concerns over excessive penalties.
In the Trump case, the banks made money. It would be akin to the car owner’s value going up with the paint job but still hitting BMW with punitive damages.
James is known for her embrace of nuclear options when it comes to political opponents or groups. She previously sought to persuade a court to force the dissolution of the National Rifle Association. The question is, what happens if she finally has found an enabling judge in Engoron?
The testimony of the bankers highlights how out of proportion this effort has become. One would expect the banks to have sought action as the aggrieved parties if they had suffered losses as a result of Trump misconduct. They did not. While they discontinued working with the Trumps after the start of the New York criminal and civil actions, they have remained silent.
It all reminds one of another great work. In Sir Arthur Conan Doyle’s story, The Adventure of Silver Blaze, Sherlock Holmes investigated the disappearance of a racehorse. Holmes noted to the local inspector “the curious incident of the dog in the nighttime.”
When the inspector objected, “The dog did nothing in the night-time,” Holmes replied: “That was the curious incident.”
The lack of any barking by the banks is just another curious element in a case against Trump that gets curiouser and curiouser.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.