Morning Glory: Due process for you but not for Trump?

It does not seem possible that there is no legal recourse for former President Trump to challenge the requirement that he either pay the full amount of the $464 million fine assessed against him immediately or post a prohibitively expensive and apparently impossible-to-obtain bond to satisfy a civil fraud judgment pending appeal.

That judgment was entered against him by New York trial court Justice Arthur Engoron, who also ordered Trump to pay pre-judgment interest as well as a 9% post-judgment interest rate in the case of civil fraud brought against Trump by the Attorney General of the State of New York, Leticia James.

Engoron is a Democrat. James is a Democrat. Engoron found — even before the trial began — that the former president had consistently committed fraud by inflating the value of his assets by billions of dollars. No jury was involved in this case. It ought to be titled Engoron and James v. Trump. It is a joke of a “case” but no serious person should be laughing.

I represented landowners and developers for decades before retiring a half dozen years ago from active practice. In 30 years of doing so on behalf of some of the country’s largest developers, I never encountered or even heard of such a case.


The reason should be obvious: Banks that lend to developers do their own due diligence. They have underwriters who scrutinize loans. They are not in the business of losing money by lending money based on wildly inflated claims of the value of collateral. If they end up defrauded, they do indeed sue for damages.

Thus, this case with no private sector plaintiff seemed absurd from the start given that lack of an actual injured party stepping forward. It is, however, the absurd judgment amount and the onerous payment terms pre-appeals that strike me as crying out for some court in New York that values that state’s reputation as a place to do business to step forward and find a way to intervene, stay the payment or the posting of the bond until after appeals have run their course.

This seemed so obvious a necessary and almost inevitable halt to this runaway series of lawsuits that I am more than surprised to have to write this column.

Five days until NY state could seize Trump tower Video

“Ms. James’s open antipathy toward Mr. Trump has been notable,” concluded the New York Times. So, too, has the judge in this show trial done everything possible to strip away any pretense of a just process much less a just decision. In a phrase: It stinks. Everyone knows it. But will any court in New York stop it?

The “finding” of damages — actual and “punitive”— of $464 million is unprecedented, and even more so because there is no victim. Indeed, the only victim in this case is going to be the State of New York, which just put up a neon sign warning every borrower that, should they be thought a Republican whom Ms. James dislikes and should he, she or it end up in the court of a cabby-turned-jurist, they should just surrender all they own and declare Chapter 11.

“Justice Engoron was appointed to the New York City Civil Court in 2003 and was elected — he ran unopposed — to the State Supreme Court in 2015,” the New York Times added in a different profile. “Before his time on the bench, he served as a law clerk to a State Supreme Court judge in Manhattan.” The 74-year old justice (as trial judges are called in New York) has enjoyed an obscure and perhaps one could even say an undistinguished career on the bench, and he clearly loved his year in the spotlight.

But a $464 million dollar judgment with punitive interest rates attached for a statutory civil offense for which no victim has stepped forward? Do you think this is just? If not just, even in the ballpark of “fair?”


Of course, it is not just or fair. It is ridiculous and, far worse, it offends any decent sense of “due process.” States “may also seize and sell property, including land, to recover the amount owed,” Chief Justice John Roberts wrote for the Supreme Court last May in a “Takings Clause” case, Tyler v. Hennepin County, Minnesota. But the Chief Justice went on to note that the “principle that a government may not take more from a taxpayer than she owes can trace its origins at least as far back as Runnymeade in 1215, where King John swore in the Magna Carta that when his sheriff or bailiff came to collect any debts owed him from a dead man, they could re-move property ‘until the debt which is evident shall be fully paid to us; and the residue shall be left to the executors to fulfil the will of the deceased.’”

Democrat New York Attorney General Letitia James and former President Donald Trump. (Getty Images)

Tyler is indeed a Takings Clause case, but there is a heavy dose of due process in the background: “A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed,” the Chief Justice noted. “The taxpayer must render unto Caesar what is Caesar’s, but no more.”

Tyler reminds of Jones v Flowers, a 2006 U.S. Supreme Court case that was a due process case that involved inadequate notice for seizure of a property by the government for non-payment of taxes. In this case, the Chief Justice, again writing for the majority, found that there “is no reason to suppose that the State will ever be less than fully zealous in its efforts to secure the tax revenue it needs.”

The Chief Justice added: “The same cannot be said for the State’s efforts to ensure that its citizens receive proper notice before the State takes action against them.”

'He’s broke': AOC and other lawmakers weigh in on possible Trump property seizure Video

“In this case, the State is exerting extraordinary power against a property owner—taking and selling a house he owns,” Roberts concluded. “It is not too much to insist that the State do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed.”

The state of New York is exerting “extraordinary power” against the former president and it ought to be stopped until what appears to me the kangaroo court proceeding gets at least a look-see by an intermediate New York State appellate court.

If at the end of that and all other related appeals the judgment against Trump holds up, improbable as that seems given these unprecedented proceedings, then he will have to pay this ridiculous fine and his real estate empire will suffer an enormous blow, as will his campaign for president. But that should not be before any further appellate review.

Democrats cheering this rush-to-ruin-Trump should remember the old rule: That which gets rewarded gets repeated. Do we really want state attorneys general bringing such overtly political cases in front of such an obviously angry and partisan judge, even if the target is a political opponent? Does the State of New York in particular want “banana republic justice system” tattooed on it?

I cannot find anyone who will write persuasively in defense of this unprecedented verdict and onerous procedure. It is effectively a “taking” of a large part of Trump’s real estate empire, and it comes as he is the presumptive nominee of the Republicans to run against a very weak incumbent in President Joe Biden. It comes soon after another unusual finding of liability against Trump for defamation and just prior to the start of a ridiculous criminal case against Trump that is now slated to begin in Manhattan in April. All three cases are in the New York State courts. Anyone notice a pattern here?

Investor and “Shark Tank” star Kevin O’Leary has taken to cable news to denounce the consequences for New York business of this “judgment.”

Kevin O'Leary battles CNN host in heated debate over Trump fraud case: 'I am speaking' Video

O’Leary is passionate on the subject and not because of love for Trump. He makes that clear again and again. O’Leary is speaking out because he knows what businesses take into account when deciding where to operate. Want to take a bad New York business environment and make it even worse, perhaps even toxic? Then turn the state’s “justice” system into a partisan shake-down and destroy operation that would make the Mob blush.

Is any court listening?

Hugh Hewitt is one of the country’s leading journalists of the center-right. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996, where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990, and it is today syndicated to hundreds of stations and outlets across the country every Monday through Friday morning. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and this column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcast, and this column previews the lead story that will drive his radio show today.


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