Attorneys for former President Donald Trump urged a New York appeals court again on March 18 to remove or lower the $464 million bond President Trump must pay in less than a week as he tries to appeal a more than $350 million judgment from a civil fraud case.
“Enforcing an impossible bond requirement as a condition of appeal would inflict manifest irreparable injury on Defendants, and ‘defeat or impair [this Court’s] appellate jurisdiction,’” they argued.
The New York Attorney General’s office, which brought the civil fraud lawsuit, argued the appeals court had no authority to do so, while the defense pointed to other cases where it was found appropriate. The bond President Trump would have to put up would include backdated interest at 9 percent, adding another $100 million to the court ordered fine, which defense attorneys say has been improperly classified as disgorgement of ill-gotten gains.
Defense attorneys submitted a hefty, nearly 5,000-page reply brief March 18, reopening arguments that had not been accepted during trial after New York Supreme Court Justice Arthur Engoron had already entered a summary judgment finding President Trump liable for fraud.
They pointed out, as they had repeatedly, that the case named no victims, and therefore no one would be harmed in a delay of payment.
“The case involves no actual victims and no award of restitution, and [the attorney general] is fully protected by Defendants’ real-estate holdings. This factor alone warrants a stay,” the defense argued.
“The judgment seeks to destroy a successful business that employs many hardworking New Yorkers, has contributed approximately $300 million in taxes to public coffers just during the dates in question in this case, and has made historic contributions to the State and City of New York.”
Attorneys also revealed that 30 companies have already turned down the defense’s bond applications, attaching an affidavit from one of the brokers. A $454 million bond would require President Trump to have $1 billion in cash reserves, and four brokers have separate brokers have tried to obtain one so far to no avail.
A ruling is expected from the appeals court in three to six weeks.
‘Manifold Errors’
The attorney general had accused President Trump and other Trump Organization executives of persistent and repeated fraud and artificially inflating President Trump’s net worth through annual statements of financial condition (SFC), which were an informal summary document of Trump Organization assets.
After a 45-day bench trial, Justice Engoron had ruled for the plaintiffs on all claims, setting disgorgement at more than $350 million in line with the calculation an expert witness called by the state devised.
The judge had also put a ban on President Trump holding a director position in any financial or legal entity in the state for three years or taking out loans from any financial institution chartered in the state, and more limited bans for his sons Eric Trump and Donald Trump Jr.
Crucially, he extended the third-party monitorship of Trump Organization, with future reviews based on the monitor’s report for additional penalties including the extension of monitorship and even business certificate cancellations.
Defense attorneys argued the judgment was full of “manifold errors,” including the disregard of the statute of limitations set by the appeals court on both claims and disgorgement, the “ridiculously” valuing Mar-a-Lago between $18 million and $27 million, and “a massive disgorgement award in the absence of any evidence that misrepresentations caused the supposedly ill-gotten proceeds.”
“Supreme Court double- and triple-counted damages, and committed elementary errors in the process, such as conflating the proceeds of a sale with the profits from that sale,” the defense attorneys argued.
“Such basic mistakes would have been prevented if this case had been allowed to be adjudicated in the Commercial Division, where it belonged.”
Disgorgement
The defense attorneys argued that the disgorgement award was “unconstitutional,” as it violates the excessive fines clause in both the U.S. and New York constitutions, calling it an “irrational, punitive sanction.”
“This case has no victims, no damages, and no actual financial losses,” the brief reads. Defendants argue that their business partners—including Deutsche Bank and the Zurich financial group—were “sophisticated” major financial institutions that testified they did their own analyses, were aware of the Trump Organization SFC disclaimers, and would not have changed the terms offered to Trump Organization “in light of the alleged ’misrepresentations’” in the SFCs as the attorney general presented at trial.
The massive figure is not an objective one; the state needed to tease out the portion of profit earned by Trump Organization that would have been a result only of inflated numbers presented on the SFCs.
The state presented an expert who created formulas to calculate the figure, and defense attorneys sought to show through their own expert testimonies that the profits were not “ill-gotten.”
In court filings, the defense also argued that several of these calculations relied on transactions that were outside of the statute of limitations, and faulted the trial court for allowing this. The attorney general had argued that the transactions were, under the continuing wrongs doctrine, distinct violations that each restarted the statute of limitations period, but the appeals court had previously found the doctrine did not apply to this case.
“The proper application of this Court’s previous ruling forecloses over 75 percent of the judgment,” the defense argued.
About $351 million of the disgorgement, after interest, falls outside the statute of limitations, the defense argued. This covers the loans for Trump National Doral Miami, Trump Golf Links at Ferry Point in New York, and Trump International Hotel and Tower Chicago, all in 2012, as well as the Old Post Office building in Washington in 2013.
Yet even with the statute of limitations properly applied, the defense argues there was no show of causation that the alleged misrepresentations on the SFCs resulted in these specific gains.
The case was brought under Executive Law § 63(12) and the defense argued the statutes are “inapplicable to the facts of this case in the first place,” and was “wrongfully relied upon” by both the state attorneys and court. The defense attorneys blasted the attorney general for using cases that had no relation to the Executive Law § 63(12), including one involving attorney disbarment, to argue against a stay of penalties during appeal.
The appeals court had already temporarily stayed some of the nonmonetary penalties ordered, which the defense argued should continue throughout the appeal.
Separately, counsel for Allen Weisselberg, former Trump Organization chief financial officer, joined the appeal. Mr. Weisselberg had pleaded guilty to perjury during the trial in the civil case, in a plea bargain in separate criminal case.
