The current status of the New York civil fraud case that New York Attorney Letitia James filed against Donald Trump, and that resulted in a huge ruling against him, thanks to Judge Arthur Engoron, is just a little bit of a puzzle. In the short term, Trump is on defense, but the wheels of justice should turn and place him on offense. Understanding that requires us to look at the logic of the law, a subject at once fascinating and exacting and, sometimes, very surprising.
The role of logic in law is one of the features of the law that most non-lawyers misunderstand. When a case goes to trial, whether criminal or civil, it is because the two sides are unable to resolve their differences out of court. This means the parties disagree either as to the facts of the dispute, or as to the law governing the dispute, or both.
The two sides to a court case are called the “plaintiff” and the “defendant.” In a criminal case, the plaintiff is the state, sometimes called the “people” of the state. Whether criminal or civil, the plaintiff accuses the defendant of some kind of wrongdoing. This accusation of wrongdoing has a name, such as theft, burglary, rape, robbery, negligence, breach of contract, fraud, etc.
In all cases, whether criminal or civil, the accusation has what are called “elements.” The elements of the accusation are propositions that the plaintiff must prove true to prevail on his case. In a criminal case the plaintiff must prove each element of the accusation true beyond a reasonable doubt. In a civil case the plaintiff must prove each element of the accusation true by a preponderance of the evidence.
Here are some Examples of accusations and their elements:
Theft: The elements of the crime of theft are (1) the defendant seized (2) a thing of value (3) that is not his own and (4) carried it away.
Malicious Prosecution: The elements of the tort of malicious prosecution are (1) The civil or criminal action was terminated in favor of the plaintiff (who was the defendant in the underlying case). (2) The defendant filed or played an active role in the underlying case. (3) The defendant had no reasonable grounds to file and pursue the underlying case. (4) The defendant filed or pursued the underlying case for an improper purpose or abusive purpose, such as a desire to ruin the plaintiff’s reputation. (5) Plaintiff suffered significant harm because of the defendant’s actions.
Defamation: The elements of the tort of defamation are (1) A false statement of fact. (2) Communication to a third party. (3) Defendant was negligent or malicious in determining the truth of the statement. (5) The false statement caused injury.
In a trial, the judge is called the “trier of law” because it is the judge’s job to rule on any disputes of law and the jury is called the “trier of fact” because it is the jury’s job to decide questions of fact.
Sometimes, people are reluctant to serve on a jury because of the Biblical injunction, “Judge not that Ye not be judged.” But that reluctance is misplaced. The jurors do not judge the defendant’s guilt or innocence. Rather, the jurors judge whether the evidence adduced at the trial proves all the elements of the accusation beyond a reasonable doubt in a criminal case or by a preponderance of the evidence in a civil case. The jury does not judge the defendant; the jury judges the evidence.
How do the jurors know what the elements of the accusation are? The judge instructs the jury on the elements of the accusation and on any other matters of law that the jury needs to know.
It is the judge's duty to follow the law and instruct the jury on the law they need to know. Then, the jury's duty is to follow the judge’s instructions. When both judge and jury properly perform their duties, the jury’s verdict will logically follow from the law and the evidence of the case.
When the losing party appeals a judgment (civil) or verdict (criminal), appellate courts are obliged to follow the law and to issue a decision that is logically sound. A correct appellate decision must be a valid argument with only true premises; that is, it must be a sound argument. The legal term for this argument is the “ratio decedendi”—the “rationale of the decision.”
An good example of a ruling court’s decision is Dodd v. Jackson, in which the Supreme Court overruled Roe v Wade. The Dodd decision was not about abortion per se. Instead, it ruled that the decision in Roe vs. Wade had no ratio decedendi because it abandoned constitutional principles about states’ rights.
Understanding these logical requirements of law helps us understand just why the appeal bond in the Trump civil fraud case in New York was set so outrageously high, at nearly a half billion dollars.
Under New York law, an essential element of a cause of action for civil fraud—that is, one of the things the plaintiff must prove by a preponderance of evidence—is that the defendant’s false statement or concealment of material fact resulted in harm to the plaintiff (or, in Trump’s case, the State of New York, which acted as the lenders’ proxy). But as every netizen by this time knows, Trump’s evaluation of his own property harmed no one. (This is entirely separate from the judge’s wacky—to put it politely—approach to evaluating Trump’s property values.)
Not only is damage an element of fraud, it’s also an element of any civil case. The party suing has “standing to sue” only when there is an actual injury. (Cases seeking injunctive relief are the exception, for they require the complaining party to make a strong case that, if the defendant isn’t prevented from action, the complainant will be injured.) On this basis, too, Engoron’s decision is reversible.
Because the case against Trump utterly failed because no one was hurt by Trump’s actions, an honorable appellate court will throw this case back in Judge Engoron’s face because he made his ruling despite any evidence showing that anyone was harmed. Because Engoron knows that his judgment will be overruled, the enormously high judgment, which carries with it an equally enormous bond on appeal, was intended to prevent any appeal.
So, as was queried in the opening paragraph, is Trump on the defense or the offense? When a manifestly impossible bond amount blocked his appeal, Trump was clearly on the defense. However, now that the New York Court of Appeals has reduced the appeal bond to a figure Trump can make, Engoron’s judgment will soon be before the Court of Appeals on the merits, where it is brain-dead obvious that the non-existence of any person harmed invalidates both standing and the Engoron judgment of fraud. The entire matter reeks of corruption.
When the Court of Appeals rules on the merits of the appeal, vacating the Engoron judgment against Trump and dismissing Letitia James’s fraud accusations, in a just world, two things would happen. First, Engoron would be removed from the bench for judicial corruption. Second, Letitia James would be disbarred for ethics violations.
Given that this courtroom drama (or farce) is playing out in New York, the judge’s and prosecutor’s just deserts are not certain. However, no matter what happens, even though the judgment itself will be reversed, Trump will still be saddled with hundreds of thousands of dollars in legal fees consumed in his defense. Will he then go on offense? Will he attempt to recoup these losses in legal actions for malicious prosecution and defamation? That’s a plaintiff’s case any good lawyer would want to take.
