Legal experts say Trump’s huge New York fee could be constitutionally ‘excessive’: ‘unheard of’

Legal experts say Trump’s huge New York fee could be constitutionally ‘excessive’: ‘unheard of’
Legal experts say Trump’s huge New York fee could be constitutionally ‘excessive’: ‘unheard of’

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After scoring a major victory Monday in a New York civil fraud case against him, legal experts are weighing whether former President Donald Trump can appeal the $454 million verdict as a violation of his constitutional rights.

The 45th president and presumptive GOP nominee in the 2024 election had until Monday to post a $454 million bond or face having his assets seized by Attorney General Letitia James, according to an order by Judge Arthur Engoron.

But just hours before the deadline, the New York Court of Appeals cut bail by 60 percent, ordering Trump to pay $175 million while the case is appealed.

Legal experts told Fox News Digital that one legal avenue Trump and his lawyers could and should pursue is to try to prove that the whopping half-a-billion figure violates a US constitutional amendment that prohibits «excessive fines.» .


Trump's victory speech

Republican presidential candidate and former President Donald Trump gestures to supporters during an election night viewing party at the State Fairgrounds on February 24, 2024 in Columbia, South Carolina. (Win McNamee/Getty Images)

James is suing Trump under a New York state executive law that gives broad investigative powers and is designed to protect against consumer fraud.

She accused him and his company of inflating property values ​​to secure better interest rates on loans from banks. In this unusual case, the state could not prove the obvious victims Trump had incurred, who suffered heavy losses.

Manhattan Supreme Court Justice Engoron in February sided with Trump and imposed what’s known as «disgorgement,» a legal remedy that requires someone who profited illegally to return any profits made while participating in the illegal business. activity.

«It is unheard of to seek repayment of over $464 million when there is no identifiable victim and when the entities on the other side of all these transactions are sophisticated investors who have done their own due diligence,» John Malcolm, former Assistant U.S. Attorney of USA in Atlanta, Fox News Digital said in an interview.

Notably, bank executives who worked with Trump testified in court that they were satisfied with their business dealings with him and even sought additional business from Trump, whom they viewed as a «whale of a client.»

Engoron calculated what the banks would have earned from the loans to the Trump company if the values ​​had not been inflated for several years.


Judge Arthur Engoron

Judge Arthur Engoron presides over the civil fraud trial of former President Donald Trump in New York State Supreme Court on November 13, 2023 in New York. ((Photo by Erin Schaff-Pool/Getty Images))

Disgorgement is not a legal, technical fine. But legal experts say the ruling could amount to what the Eighth Amendment prohibits.

This amendment states that «excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.»

«Whether disgorgement counts as a fine is complicated,» Malcolm said. «However, if it were held to be a fine, it would certainly be an ‘excessive fine’ that would violate the Eighth Amendment.»

Jim Trusty, a former Trump legal adviser and former federal prosecutor, said the Eighth Amendment violation argument «is not absurd because the exemption is thinly veiled as criminal fines.»

Punitive damages are what courts assess strictly as punishment for a crime, in addition to the assessed losses owed to the victim.

«In this case, nobody lost anything. In fact, the banks testified in court that they insisted on getting back into business with Trump. It’s not the only argument or the strongest argument he has, but it’s a valid range because the sentence smacks of punishment,» he added.

«The question comes down to whether the judgment reflects ill-gotten gains, which are recovered by the court, or something more punitive, such as a fine,» Trustee added.

Mark Burnovich, a former prosecutor and former Arizona attorney general, told Fox News Digital that James’ case was «more about political vendetta» than meeting the proper standards and administration of justice.

«Whether you’re suing a private company, whether it’s a criminal case, a civil case, when you’re the government, you can take away people’s livelihood, their life, their liberty and their property,» Brnovich noted.

“So with that comes great responsibility. And that means you don’t just throw crap at the wall and see what sticks. You don’t measure success in terms of the number of years in prison someone can receive or how many fines you can face against a company or individual. The measure of success at the end of the day is is justice served?” he said.

The Eighth Amendment has historically only applied to criminal, not civil, cases.

But Burnovich, who filed and settled a consumer fraud lawsuit against the infamous Elizabeth Holmes and her company Theranos, said he thinks the Eighth Amendment «can apply in a situation where you have a fine that is essentially arbitrary and punitive.»

«And I think what Trump’s lawyers are doing — they’re preserving that argument on appeal,» he said.


Letitia James delivers remarks after Trump's sentencing

New York Attorney General Leticia James (Michael M. Santiago/Getty Images)

Burnovich, who has argued three cases before the Supreme Court, noted a recent trend over the past decade in which the Supreme Court seems «definitely willing at some point to step in and say that the civil penalty essentially crosses the line» into excessive, infringing of the Eighth Amendment.

In 2019, the Supreme Court ruled for the first time that the Excessive Fines Clause can be used to challenge state court decisions.

In the majority opinion, the late Justice Ruth Bader Ginsburg wrote, «For good reason, the protection against excessive fines has been a constant bulwark throughout Anglo-American history: excessive fees undermine other constitutional freedoms.»

«Excessive fines can be used, for example, to retaliate or to chill the speech of political enemies,» she said.


Most recently, the Supreme Court ruled in favor of a 94-year-old Minnesota grandmother who claimed the state violated her constitutional rights when it seized her apartment for unpaid tax debt, then sold the property and kept all the proceeds from the sale — which were a lot above what she actually owes.

In a concurring opinion, Justice Neil Gorsuch, joined by Justice Ketanji Brown Jackson, noted how lower courts should consider Eighth Amendment challenges.

«Even without emphasizing guilt, this Court has said that a statutory scheme may still be punitive when it serves another «purpose of punishment,» such as «[d]eterrence,» he wrote.

“Economic penalties imposed to deter willful non-compliance with the law are fines by any other name. And the Constitution has something to say about them: they cannot be excessive,” he said.

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