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Been a hell of a day in Trump world for legal developments.
Yesterday we discussed some aspects of the case in progress in the Southern District of Florida where Trump is seeking to get some of the documents back from the government that were seized in the Mar-a-Lago raid. While proceedings have been in progress there the United States filed an interlocutory appeal to the 11th Circuit. They specifically wanted a stay of the portion of Judge Cannon's order that enjoined them from using the 100-ish documents with classification markings in any criminal investigation. Today the 11th Circuit granted the stay requested by the United States. Frankly I think the logic in the Court's order goes farther and would probably stay all of Judge Cannon's ruling but the United States only asked for those documents with classification markings and so that's what they got. Trump could appeal this to the Supreme Court or (possibly?) the full 11th Circuit but I doubt either would grant relief.
In other news, New York Attorney General Letitia James has filed a 200-some page civil complaint detailing extensive fraud perpetrated by Trump, his family members, businesses, and agents. Over 100 pages of the complaint (pages 33 to 154 in the pdf) are dedicated to detailing in substantial detail how they committed fraud in the course of representing the value of various assets they owned. Another 40 or so pages details how they used these fraudulent valuations to secure loans and insurance for the properties in question. The relief requested is quite extensive. It includes an approximately $250million disgorgement penalty, a ban on certain Trump organization officers from serving in a financial director capacity for any New York company and a ban on the Trumps themselves serving as a director or officer for any New York corporation.
How does civil fraud work in a case like this? Is there a bank or insurance company filing the case? Is the AG alleging that Trump defrauded her, or the NY government? My limited experience with fraud involved either the government pressing charges over fraud to themselves, or me having to do an annoying amount of work and court appearances to follow-up. I'm assuming things change drastically when the stakes get this big, but how?
In this claim, the state of New York is filing an Executive Law 63(12) case against Trump, some Trump family members, and the Trump organizations. New York state law permits the attorney general to bring against businesses for a wide variety of reasons but essentially including any "repeated" fraudulent or illegal act, without needing the victims to be present (or, in some cases, for victims in the conventional sense to exist). Used to have a three-year statute of limitations, was bumped to six years recently.
This means that, while the case is about the alleged fraud and falsification, the state's authority to bring the case is not as a victim of the fraud, but as an authority to bring action against unlawful or fraudulent actors. This also makes it less important whether and to what extent any individual victim of the fraud was harmed: the sticker-shocking 250mil claim is about the benefits the Trump organization received, not specific to losses suffered by any bank.
The legal claims are summarized starting at page 205, and can be tl;dr'd as fraud, falsifying business records, issuing false financial statements, insurance fraud, and conspiracy to commit them. Some of them could be considered 'against' the state, in the sense that false business records have broad ramifications, but for the most part there are specific harmed parties (largely insurers or lenders) who are not parties to the suit.
This sort of claim doesn't require size as a statutory prong, and indeed the NYAG has used this approach in the past to go after some pretty small names or faults. See NYAG v. TempurPedic (alleged price-fixing), or NYAG v. Wegmans (cloud security/data privacy), or NYAG v. rando bus companies (city limits on vehicle idling?).
((I think there are due process concerns in this class of statute, given how often it's used as to achieve the sort of penalties that might otherwise fall under criminal law without the relevant evidentiary, burden of proof, or adequate defense standards, and because it's often used as a tool to make later criminal prosecutions, and the complaint does motion about referrals. But like the NYAG's highlighting of Trump's previous use of the Fifth Amendment for the purposes of adverse inference (technically still permitted under Baxter v. Palmigiano!), that's the sort of criticism that only has a lot of backers in very specific discussions and then gets ignored whenever a sufficiently unpopular target.))
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Various state statutes create civil causes of action for violations of various criminal laws, and create standing for the AG to sue. In this specific case, New York Executive Law §63(12) states that:
Fraud is the basis for both a civil cause of action and criminal charges, and is of the nature that it can be systemic and pervasive enough to represent a risk to a wide swath of the public. Generally speaking, civil law exists to resolve disputes between individuals and criminal law exists to protect the public at-large. For example, if I breach a contract or don't shovel my walkway or have a momentary lapse of concentration that causes a car accident, I may harm you, but I'm not really a danger to society. On the other hand, if I rob you or assault you or trick you into giving me your money then there's evil intent and I'm a risk to the general public. In cases like assault or battery I could be arrested and charged and I could be sued for damages as well, but the scope of my actions is limited enough that it makes little sense for the AG to initiate a civil suit on behalf of the victims. Fraud, on the other hand, is usually part of a scheme to defraud many victims, so the state has an interest in stepping in on behalf of those victims.
So why not just charge Trump (or any other defendant) criminally? Well, criminal prosecutions have certain downsides. For one, the burden of proof is a lot higher. While the burden in civil fraud cases is higher than in normal civil cases (Clear and Convincing Evidence vs. mere Preponderance of the Evidence), it's still not Beyond a Reasonable Doubt. Second, the law isn't as concerned with defendant protections in civil cases. The biggest is that the right to self-incrimination is severely limited. If the plaintiff wants to depose you, you have to submit to a deposition or be subject to contempt of court. You can be forced to testify. The right to have an attorney present is limited. And while you can plead the fifth, you can only do so if it would affect your penal interest (not merely tank your civil case), and the jury is allowed to draw a negative inference from your doing so (in criminal matters the jury is not, and judges will disallow testimony altogether if they know the witness is going to plead the fifth).
If it seems like this is unfair and puts the defendant at a great disadvantage, there are also limitations of the civil process. The biggest is that the remedies are severely limited. Trump and his associates can't go to jail for anything that happens in this case. The statute only authorized the AG to seek monetary damages, and a few other minor remedies that would prevent the defendants from conducting business in New York. If there's money awarded it will be distributed to the victims of the fraud. The case is basically a way for the AG to go to bat on behalf of the victims of the fraud, and AGs in general are willing to launch investigations like this when the scope of the fraud is large enough to make it worth their while.
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