Some judges in a New York appeals court appeared receptive Thursday to possibly reversing or reducing a civil fraud judgment that stands to cost Donald Trump nearly $500 million. One judge called the former president’s penalty “troubling” and wondered if the state’s policing of private business transactions was “deterrence” or “mission creep.”
A five-judge panel in the state’s intermediate appeals court in Manhattan quizzed lawyers representing Trump and the New York attorney general's office during oral arguments in the Republican presidential nominee's fight to get the Feb. 16 verdict overturned.
At times the judges appeared dubious of Trump’s side, too. Appeals court judges often ask pointed questions of both sides to test their arguments.
Trump is asking the court to reverse Judge Arthur Engoron’s ruling that Trump lied for years about his wealth on paperwork given to banks, insurers and others to make deals and secure loans. The verdict cut to the core of Trump’s wealthy, businessman persona. Three of the five judges who heard Thursday’s arguments must agree in order to alter the outcome.
Get top local stories in DFW delivered to you every morning. Sign up for NBC DFW's News Headlines newsletter.
Trump did not attend the hearing, which was held in an unusually ornate appellate courtroom — a far cry from the sterile courthouse where he spent weeks as a criminal defendant in his hush-money felony case earlier this year.
A ruling could come before Election Day
In the past, Trump has decried the lawsuit's outcome as “election interference” and accused Engoron of punishing him for “having built a perfect company.”
U.S. & World
The appeals court, known as the Appellate Division, typically rules about a month after arguments, meaning a decision could come before Election Day, Nov. 5. It could uphold the trial verdict, reduce or overturn it.
Trump lawyer D. John Sauer argued that the lawsuit brought by Attorney General Letitia James, a Democrat, stretched the state's consumer protection laws, insinuating the government into transactions where there were “no victims" and “no complaints.”
Trump did business with “sophisticated counterparties" that performed their own due diligence rather than relying solely on Trump's financial statements — documents that Engoron ruled wildly inflated his net worth.
The case, Sauer said, “involves a clear cut violation of the statute of limitations." Judge Llinét Rosado noted that the case involved some “loans which closed long ago.”
If the verdict is allowed to stand, he argued, "people can’t do business in real estate" without fearing they'll face similar scrutiny, Sauer said.
Lawyers and the judges volley over consequences
The state's deputy solicitor general, Judith Vale, countered that “there was absolutely a public impact and a public interest here,” noting that lenders including Deutsche Bank incurred undue risk based on Trump's representations.
But Judge Peter H. Moulton questioned if James' office was engaging in “mission creep,” and whether the law she sued Trump under had "morphed into something that it was not meant to do.” At the same time, Moulton suggested the lawsuit and actions like it may deter similar actions going forward, reasoning that “in the future, some deal might not go down well and someone would be harmed by that.”
Judge David Friedman drew a distinction between Trump's case and others that were brought under the law in which corporate actions harmed large groups of people. One stemmed from the 2008 collapse of investment firm Lehman Brothers and another involved consumers taking out home loans they could not afford.
“It hardly seems that justifies bringing an action” against Trump, Friedman said. “You don't have anything like that here.”
Judge John Higgitt asked if the appeals court should consider “guardrails” to prevent James from “going into an area that wasn’t intended for her jurisdiction.”
Later, Moulton questioned Vale about Engoron's hefty punishment, observing that “the immense penalty in this case is troubling.”
Vale explained that, under the law, the judge was permitted to essentially take away whatever Trump gained from transactions based on his inflated financial statements. The gains included profits from selling properties like his Washington, D.C. hotel and savings from lower loan interest rates.
“That is an enormous benefit that they got from the misconduct, and it is not an excuse to say, ‘well, our fraud was really successful, so we should get some of the money,’” Vale argued.
The state argues there is ample evidence backing the verdict and that Trump’s appeal is based in part on arguments that Engoron and the Appellate Division have rejected before.
Both values and penalties ballooned
Sauer, a former Missouri solicitor general, previously argued Trump’s successful presidential immunity case before the U.S. Supreme Court.
Ruling after a 2½-month trial, Engoron found that Trump had padded his net worth by several billion dollars on annual financial statements by overvaluing assets including his golf courses and hotels, his Mar-a-Lago estate in Florida and his Trump Tower penthouse in Manhattan.
Trump and his co-defendants are also challenging Engoron’s decision to rule, even before testimony had begun, that the state had proven that Trump had fraudulently inflated his financial statements. The judge ordered Trump and the other defendants to pay $363.9 million in penalties — a sum that has now grown with interest to more than $489 million.
Trump posted a $175 million bond in April to halt collection of the judgment and prevent the state from seizing his assets while he appeals. The bond guarantees payment if the judgment is upheld. If Trump wins he’ll get the money back.
If either side doesn’t like the outcome, it can ask the state’s highest court, the Court of Appeals, to consider taking the case. Trump has vowed to fight the verdict “all the way up to the U.S. Supreme Court if necessary.”
