A New York appeals court held a hearing yesterday, September 26, on the appeal of the $454 million civil fraud judgment imposed against Donald Trump. The former president’s appeal was greeted by a more receptive audience than the notoriously anti-Trump trial judge, Arthur Engoron.
As in all things legal, we turned to Legal Affairs Editor Scott D. Cosenza, Esq., to unpack the appeal.
Leesa K. Donner: Trump’s lawyers are arguing to have the civil fraud conviction overturned. Scott, based on what you heard from the hearing, do they have a chance?
Scott D. Cosenza: Better than just a chance. New York Attorney General Letitia James campaigned for office on a “get Trump” platform – and she has, for now. Mr. Trump has a few chances to appeal the massive penalty against him, both in state and – if it gets that far – federal court.
LKD: Weren’t Judge Arthur Engoron’s rulings and opinions always ripe for a challenge?
SDC: While I am not a New York attorney, many decisions and rulings in the case seemed to provide opportunities for reversal in the appellate courts.
LKD: Judge Peter Moulton asked: “How do you tether the amount that was assessed by the Supreme Court to the harm that was caused here where the parties left these transactions happy?” What, if anything, does this type of query suggest?
SDC: Judges are perplexed by the same thing that the common observer of the case is. How is it a fraud if there is no victim? Another assertion from the bench was that the state has never – not even one time – prosecuted a case like this, where no complaint was made and no one is claiming victim status. It’s interesting that the bench has delved so deeply into the matter, and before arguments to boot.
LKD: According to many legal experts, this civil fraud case appeared to be a stretch right from the jump. Why wasn’t Engoron able to see this, or did he see it and simply choose to ignore it?
SDC: Well, I can’t read minds. Orange Man Bad syndrome would be my guess.
LKD: A significant portion of the hearing was devoted to the valuation Mr. Trump attached to his various properties. However, the former president’s attorneys were able to shoot holes in this by saying he undervalued several of his holdings. Do you think their decision will hinge on this valuation issue?
SDC: I think what’s more relevant is that Mr. Trump was dealing with New York and international banks relating to real estate in the state. They are the most sophisticated participants in the lending and real estate markets than one could contemplate. Trump is not accused of fleecing widows and orphans with shoddy shotgun shacks. Did he really “put one over” on these banks? The notion seems far-fetched.
LKD: If the judgment is vacated, what will be the takeaway for New York Attorney General Letitia James?
SDC: This is the intermediate appeals court. Almost certainly James would appeal the decision to the state’s highest court, which is not called the Supreme Court but the New York Court of Appeals.
LKD: When it comes down to the nitty gritty, do the justices’ questions – more often than not – indicate in which direction they might be heading?
SDC: Trump’s lawyer and his arguments seemed well received by many on the five-judge panel at Thursday’s hearing. Counsel for the attorney general’s office was challenged by the bench literally within the first two seconds of her argument. Appeals courts very rarely give advocates no space at all to state their case. That said, lawyers love to equivocate, and I’m no different, so I will hurry to add that questions at oral argument are often not revelatory of the judges’ opinions of an argument’s merits.
