A New York Style Witch Hunt

By Brent E. Zepke, Esq.

In a letter addressed to Clifford Robert – President Trump’s respected and experienced trial counsel – Judge Arthur Engoron wrote, “You and your co-counsel have been questioning my impartiality since the early days of this case, presumably because I sometimes rule against your clients.”

The time was 11:45 am, Sunday, February 4.

It caught my attention.

I asked myself, “Why would a judge write such a letter?

The short answer was Donald J. Trump. It was written to his attorneys about a case before the judge in New York. The prosecutor – New York Attorney General Letitia James – was elected primarily based on her stated determination to “Get Trump.”

At this point, it looks as though she has fulfilled that campaign promise.

The setting was a civil case in the Supreme Court of New York. It being a trial court in New York City sends the message that in New York things are, well, different. 

President Donald J. Trump was the defendant in the “trial” of People vs. Trump, in which there are no plaintiffs besides the state, and the state was not a party to any of the transactions. 

The quotation marks are around the word “trial” because trials are conducted by “trial courts,” and a “trial court” is defined as any court that hears a case first, any of which are referred to as courts of original jurisdiction. A trial court makes both findings of fact and law through a full trial expounding the evidence of the case.

Did Judge Engoron conduct such a trial?

No.

Pronounced Guilty Before Trial

Before the trial began, Judge Engoron deprived President Trump of his right to a fair trial by granting a “summary judgment” against him. Summary judgments are only appropriate when there is no genuine dispute as to any material fact, and the movant (legalese for the party making a motion, in this case, the state), is entitled to judgment as a matter of law . 

My working definition is that summary judgements are only appropriate when considering the facts in the light most favorable to the other party and that there is no chance that party can win. Usually, the defendant makes a motion for summary judgment after the prosecution completes their case. I have never seen one granted before a trial begins.  

The judge’s summary judgment had already held Trump liable, so why have a trial?

“Sentence first, verdict afterwards,” the Queen of Hearts declares haughtily during the “trial” of the Knave of Hearts in Lewis Carroll’s “Alice’s Adventures in Wonderland,” but who could have foreseen such an event in New York City?

Judge Engoron conducted a “trial” in the Trump case to determine how much in damages to award the state, although the state of New York was not part of any of the transactions, and none of the private parties involved agreed with the allegation: in effect, the state was arguing it was a “victimless” civil case.

The alleged fraud was in the valuations placed by the Trump team in the papers filed to obtain loans, which also contained the declaimer that these were estimates. The testimony of the experts was that the estimates were, in fact, reasonable.

No One Hurt; No One Lost Money

The “trial” lasted 2 ½ months and included the testimony of 40 witnesses, including all three of Trump’s children, executives from the Trump Organization, and multiple experts.

Particularly notable testimony came from the banks that had made the loans to the Trump Organization, all of whom agreed that they were completely satisfied with the paperwork and the outcome. Industry practice is for them to do their own valuations, and the evaluations they made agreed with Trump’s. The banks also said they would loan to Trump again, after all, the transactions were successful, and they had been paid in full.

A bit of humor, or horror, depending on your perspective, involved the judge criticizing the Florida tax collector’s evaluation of Trump’s Mar-a-Lago 17-acre estate, and its championship-quality golf course, at $739 million: the judge set his own valuation at $18 million and then charged Trump with fraud for his valuation.

An indication of the lack of “neutrality” of Judge Engoron was his asking Trump’s lawyers whether they could “control” their client when Trump refused to answer the prosecutors’ questions with just a “yes” or “no.” 

The “yes or no” tactic is often used on cross-examination to try and make the witness appear to admit something that may not be true. The classic example is to require a “yes” or “no” to the question: do you still beat your wife?

My prep of witnesses always included the direction that if they could not answer with a “yes” or “no,” they should so indicate and then fully explain their answers. The tape from the American Bar Association that I show to witnesses, as part of their prep, contains the same message. 

Ms. James increased her original $250-million request for a fine to $370 million, in addition to an order for the Trump Organization to divest itself of all businesses in N.Y.

Judge Engoron issued an order on February 16, for Trump to pay more than $350 million in penalties, and that Donald Trump not serve as an officer or director for any N.Y. company for three years. 

There Were Many Irregularities

The judgment included fines and restrictions on Trump’s two sons as well.

Will an appellate court in New York follow the advice given to me by Federal Judge Fisher in one of my first cases? “Counselor, I am inclined,” he said, “to agree with you that you are entitled to a summary judgment. But appellate courts tend to reverse pre-trial summary judgments, so I will not rule until at least after the other side has their day in court.”

There were too many irregularities for this judgment to withstand appeals. 

A few of the Irregularities were:

The case appears to have been brought in the wrong court;

When the summary judgment was entered, there was no evidence “on the record,” since that requires the right of the other party to cross examine the presenter of the evidence;

In effect, there was no record when the summary judgment was granted.

The judges on the N.Y appellate courts were elected by the same set of voters who elected Ms. James and Judge Engoron, so it may require a higher court.

But the verdict and the outrageous fine should be overturned.