- Civil lawsuits have a lesser level of proof than criminal cases.
- Jurors would be allowed to draw an adverse inference if Trump invoked his 5th Amendment right.
- The lawsuit seeks $250M in penalties and a permanent ban on the Trumps running businesses in New York.
James’ court filing argues that’s what Trump must pay for a 10-year scheme “that grossly inflated” his personal net worth by billions of dollars and then used the higher values “to induce banks to lend money to the Trump Organization on more favorable terms than would otherwise have been available.”
The alleged actions violated New York laws and likely saved Trump, his business and his family more than $150 million from 2011-2021, the complaint argues. Trump’s company said there was no wrongdoing. Not only were the lending banks unharmed, “they profited handsomely, to the tune of hundreds of millions of dollars in interest and fees,” the company said in a formal statement.
Now the case is in the New York state court system, where legal rules for civil matters may make it easier for James to prove her case and have the court impose a multi-million dollar fine than if the Trumps had been criminally charged.
Stay in the conversation on politics: Sign up for the OnPolitics newsletter
As the two sides battle over who should be assigned the case, a state trial court judge has set a hearing Thursday on James’ request for a monitor to oversee some Trump company transactions and a restriction on disposing of some assets. The requests seek to stop the defendants from trying to avoid the massive financial penalty James is trying to recover in the suit.
“I don’t think it’s unlikely at all that a New York jury would require him to pay $250 million in penalties,” said John C. Coffee, Jr., a Columbia University Law School professor and an authority on white collar crime and complex litigation. “It might force him to divest some of his assets and change his lifestyle.”
Standard of proof
Prosecutors win convictions in criminal cases if the evidence shows guilt beyond a reasonable doubt. And the jury’s verdict must be unanimous.
The standard of proof in New York civil cases is a preponderance of the evidence. That’s easier to show, because it means the alleged actions more than likely happened. Instead of a unanimous verdict, agreement by at least five-sixths of the jurors is sufficient for the state to win the case.
“This makes it easier for the attorney general to prove” the allegations, said Coffee.
During the three-year New York investigation, Trump fought efforts to make him appear at a deposition and answer questions under oath. He ultimately was deposed after a New York Supreme Court judge – a trial court judge in the state court system – ruled against him. However, he repeatedly invoked his Fifth Amendment right not to answer questions and potentially incriminate himself.
Taking the fifth conflicted with past statements in which Trump suggested that only organized crime figures refused to answer questions under oath.
Invoking his right to silence in a civil trial would work against Trump. If he did, the rules would allow a trial judge to tell the jury to infer that the facts as alleged are true, said Coffee. He added that Trump’s lawyers would not allow the former president to put himself in such a position.
In contrast, a witness who takes the fifth in a criminal trial cannot have that held against her or him.
Dispute over a judge
The New York attorney general’s case against Trump is in an early stage. Nonetheless, opposing attorneys already have clashed over Acting New York Supreme Court Justice Arthur Engoron, who’s assigned to the case.
Engoron was the judge who required Trump to be questioned under oath in a deposition during James’ three-year investigation before the civil lawsuit was filed. He also issued a contempt order against Trump and required the former president to pay $110,000 for failure to provide records demanded by James. Engoron later lifted the contempt finding.
James argues that Engoron is the right choice because he is already familiar with the litigation. Keeping him would speed up a case that Trump’s legal team has repeatedly tried to delay, wrote Kevin Wallace, an attorney on James’ team.
Trump attorney Alina Habba argued in letters to Justice Adam Silvera, the top administrator for New York County Supreme Court’s civil division, that the case should be handled by the state trial court’s Commercial Division. That’s a special section formed to handle complex corporate cases.
She wrote that the arguments by James’ team appeared aimed at circumventing the court’s judicial assignment system in order to “judge shop.”
Silvera ruled Oct. 25 that Engoron was properly appointed because he presided over the earlier related matter that led to the contempt order. Silvera also said both sides’ filings about the case assignment had been premature.
But Trump’s team hasn’t given up.
On Wednesday, Habba sought a hearing on why the lawsuit should not be transferred to the court’s Commercial Division. Citing state regulations, the filing said such an ssignment “is mandatory.” It also asked Engoron to postpone all action in the case until the assignment issue is decided.
In response, James’ office sent Engoron a letter that said the ruling by Silvera, the administrative judge who denied the transfer, “is final and not subject to appeal.”
The judge agreed with James’ argument and declined to sign the application by Trump’s lawyers.
Coffee, the Columbia Law School professor, said it would be unusual for an assigned judge to be removed from a case unless she or he had a conflict of interest or had made an error.
Separately, James filed an Oct. 13 request asking Engoron to block Trump’s business from transferring assets to a newly-formed company with a similar name. She argued the new entity appeared aimed at enabling his older company “to avoid existing responsibilities,” including the state lawsuit.
Trump’s lawyers argued in a court filing that “this politically motivated attempt to nationalize a highly successful private enterprise is precluded under our Constitution and should therefore be rejected.”
Engoron scheduled a Thursday hearing on James’ request.