New York’s attorney general just can’t give it up.
No one is above the law, but some actions are beneath it. Just ask Letitia James, the New York attorney general who filed a $250 million civil suit against Donald Trump, which may turn out to be the last gasp of a multi-year effort to criminalize the electoral process in America. As she prepares for trial in early 2023, let's see what she has to go on.
This civil suit, aimed at Trump himself and his organization, is only one of several legal battles bubbling around New York. There’s the E. Jean Carroll defamation case and forthcoming sexual assault lawsuit, a Manhattan criminal fraud and tax evasion trial over contracting disputes, and a trial featuring Trump CFO Allen Weisselberg. But the jewel in the crown of prosecutions is the $250 million civil suit that, if successful, will touch Trump directly and effectively bar him from doing business in New York.
During her 2018 campaign for attorney general, James declared: “Trump should be charged with obstructing justice (in connection with Russiagate). I believe that the president of these United States can be indicted for criminal offenses and we would join with law enforcement and other attorneys general across the nation in removing this president from office.”
James tweeted a campaign endorsement from Rep. Maxine Waters, who said James would be an attorney general “who will investigate Trump,” and promised that “the president of the United States has to worry about three things; Mueller, Cohen, and Tish James.” For the record, Robert Mueller has retired to the dark side of the moon after his investigation proved nothing, and Michael Cohen is a convicted felon who would be lucky to be called as a filler guest on the Howard Stern Show.
In her 2018 election night victory speech, James boasted she would “be shining a bright light into every dark corner of [Trump’s] real estate dealings.” Before taking office, she repeated her threat to target Trump world: “We will use every area of the law to investigate President Trump and his business transactions and that of his family as well.”
She even pulled Trump into her victory speech, saying her win “was about that man in the White House who can’t go a day without threatening our fundamental rights.” All of that sounds like she had it in for Trump; had an attorney general ever said such things about a private citizen not named Trump, it would be likely grounds for dismissal for bias. That said, Trump sued James last year seeking to halt her investigation, alleging it was “baseless” and motivated solely by her desire to harass a political opponent. A judge dismissed the suit in May.
James does deserve a few points for being the last one standing. In an unprecedented sweep over the last five years, Congress tried to impeach Trump twice. The FBI tried to indict him for espionage. The Southern District of New York could not find anything on which to indict Trump after he left office. The same goes for the Manhattan District Attorney's office. Of all those lawyers and cops, only Tish was able to drop paper on Trump's desk.
Remember the timeline. At first they thought Trump was a literal Russian intelligence officer, the actual Manchurian candidate, which would have been the most significant political scandal in American history had it been true. James’s case is less flashy. Her civil lawsuit alleges, inter alia, that Trump overvalued some of his real estate to obtain loans and undervalued the same real estate to pay lower property taxes on it. This is so common in the New York real estate world that these disputes are not even typically handled by a court and instead adjudicated through a tax commission grievance process. The result is typically a levy or a fine if the owner is found to have significantly manipulated prices.
Proving the same in a civil case and imposing James’s proposed penalties (a $250 million fine and a ban on doing business in New York state) will be a tall order. Even The New York Times had to admit James will have a hard time proving the case: “Property valuations are often subjective, and… all [Trump’s] loans are either current or were paid off, some before they were due.” Factors that can legitimately affect properties' stated value include potential for future income, the view from their upper floors, zoning laws, proposed changes, and the like. If Deutsche thinks they got the deal right and is not suing, who is the attorney general protecting here?
The alleged victims in James’s suit aren’t mom-and-pop customers, contractors he stiffed, or shareholders he lied to. The alleged victims are banks (primarily Deutsche Bank, one of the world's largest) and insurance companies that supposedly undercharged Trump for loans and insurance policies, all because Trump allegedly told them his properties were more valuable than they actually were. Boo hoo.
The government doesn’t usually sue on behalf of big businesses that have their own well-staffed legal departments; it is a huge tell against James that Deutsche is not suing Trump world. Financial firms rely to some extent on customers' self-reported data. But they also do their due diligence on what real estate collateral is worth to assure they don’t commit money to a losing deal.
It works the same way (with fewer zeros) when you apply for a home mortgage. The bank does not write a check with no questions asked. Instead, it runs a credit check, sends out an appraiser to value the property, insures everything, and prices the loan according to the risk it believes it is taking. Trump could make whatever claims he wanted about his properties at Mar-a-Lago and 40 Wall, but no one was really listening. You know, trust but verify.
Some of the deals were already verified, such as Trump's sale of rights to the Old Post Office in Washington, D.C., whose sale at its Trump-stated value was approved by Joe Biden's General Services Administration, though James includes that sale in her lawsuit. None of Trump's creditors lost money on any of his loans. Every one has been paid off or is being paid off. There were no allegations of an actual crime by anyone in law enforcement or the private sector. Instead, James started an investigation hoping to find a crime. By making this a civil suit, she avoids the higher standards of proof and grand jury proceedings that would attend a criminal case.
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It is no small surprise that James is up for reelection as attorney general in November. James is fundraising off the lawsuit, writing to campaign supporters: “These men think they can rattle me and scare me off my path, but the truth is, they have only reaffirmed why I went into this work in the first place.”
It is extremely likely if Tish James loses in November (polls show she is currently in a dead tie with her Republican opponent) that her successor will drop the suit entirely; consider the way the Manhattan D.A.'s office gave up on Trump when the top job changed hands. Should she win again, James will spend the next few years fending off motions from Trump to dismiss, change venues, and question the impartiality of the jury. Trump could easily move the case out of liberal Manhattan to bright red upstate New York, where he beat Joe Biden in 2020, stalling until the 2024 election is over.
And, small world, James may even have one more stop on her legal adventure tour. Concerns over past prosecutorial abuses led to the creation in 2021 of the New York Commission on Prosecutorial Conduct, designed to hold prosecutors “to the highest ethical standards in the exercise of their duties.” We’ll see what that means for Tish James.