The Letitia James Lawsuit May Finally Nail Trump

4 minute read
McQuade is a professor at the University of Michigan Law School, and a former U.S. Attorney. Her new book is Attack from Within: How Disinformation is Sabotaging America

The lawsuit filed this week by New York Attorney General Letitia James against Donald Trump may be the legal action that finally holds the former president accountable. That’s because of four important words: preponderance of the evidence.

Trump is under investigation for a variety of alleged misconduct—election fraud in Georgia, financial fraud in Manhattan, his role in the Jan. 6 attack in Washington. But those investigations are all criminal cases, which bring with them the burden of proving guilt beyond a reasonable doubt. In the case filed Wednesday, the standard is the lower one used in civil suits that requires simply proving that the defendant more likely violated the law than not. And for that reason, this suit may be the one that finally holds Trump accountable for misconduct.

The fact that the legal action is civil in nature does not diminish the magnitude of its claims. The complaint alleges that Trump, three of his children, the Trump Organization and others engaged in ten years of financial fraud. According to the complaint, Trump inflated the value of his assets by billions of dollars to fraudulently obtain loans, insurance coverage and tax benefits. The 220-page complaint details what James says are fraudulent valuations. Among the allegedly inflated assets contained in statements of financial condition, Trump valued his Mar-a-Lago club in Florida at $739 million, and failed to disclose restrictions that prevented its sale for residential use. In fact, James alleges, its value is $75 million. The complaint is replete with descriptions of other properties, the values of which were grossly overstated.

Proving these falsehoods by a preponderance of the evidence is made even easier in a case that rests largely on documents. Falsehoods can be proved by showing inconsistent statements about asset values between documents. In a case involving violent crime, proof requires eye witnesses who can testify about what they observed. But witnesses are subject to cross-examination that can attack their ability to observe or remember what they saw. Not so with documents. Documents don’t lie and documents don’t forget.

In addition to the lower standard of proof in a civil case, another other advantage exists in this case over criminal charges. A witness’s invocation of his Fifth Amendment privilege against self-incrimination may be admitted into evidence in a civil trial. In this case, Trump and his son Eric Trump reportedly invoked their Fifth Amendment rights repeatedly during their sworn depositions. In a criminal case, a jury will not be told that a person refused to answer questions on the basis that his response might incriminate him. Revealing that fact to a jury is itself a violation of the Fifth Amendment. But in a civil case, those rules do not apply. A jury could be told that when asked to explain what appeared to be inflated assets, Trump took the Fifth. Jurors would further be told in jury instructions that they may draw from his silence what is known as an “adverse inference,” that is, a conclusion that the answer would have been harmful to his case.

James may have selected civil claims because she lacks authority as attorney general to bring criminal charges of this nature. She has, however, referred the case for potential criminal investigation to the U.S. Attorney’s Office for the Southern District of New York and the Internal Revenue Service. Nothing about her civil case would prevent them from proceeding with criminal charges.

While no prison sentence will result from this lawsuit, James seeks to recover the $250 million that she alleges was illegally obtained. She also seeks to prohibit Trump from engaging in real estate transactions in New York for five years and to bar him from serving as an officer or a director of a corporation in New York permanently.

And most importantly, a judgment against Trump would expose his apparent lies and hold him accountable for misconduct. In a country that values the rule of law—the notion that no one is above the law—it has been frustrating to for many to see justice for Donald Trump appear to be so elusive.

A judgment against Trump would not make him a felon or send him to jail, but it would brand him for what he appears to be to so many—a con man.

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