Trump deserves his day in appeals court
New York Attorney General Letitia James was poised to start seizing former president Donald Trump’s assets this week — but an appeals court on Monday granted him a partial reprieve. Now, Trump has 10 days to post a $175 million bond, rather than one totaling $464 million, to appeal a civil judgment against him and his family business. This might seem like another example of courts helping Trump escape punishment by exploiting the judicial system’s niceties. In fact, it is an appropriate ruling that will avert potentially unjust harm to a citizen who could prevail on appeal, at least in reducing the size of the gargantuan penalty he faces.
No matter how much one disapproves of Trump, or wishes that his presidential ambitions fail, every defendant deserves due process, including recourse to appeal. That is true even with former presidents who are as unpopular in a particular jurisdiction as Trump is in New York — and even in civil cases such as the one in question. Judges and juries err. Seeking appeal should not be effectively impossible, or expensive to the point of imposing vast and irreparable harm, particularly when a defendant has a colorable argument before appellate judges, as Trump appears to have.
The original price of appeal in this case was massive. Trump’s lawyers claimed last week that they tried to get 30 different insurance companies to post a sufficient bond, but none would accept real estate as collateral. Many banks have stopped working with Trump, who has a history of reneging on creditors. Even billionaires tend not to have hundreds of millions of dollars in cash on hand. Liquidating properties to free up money cannot happen overnight. Forcing a quick asset offload, even just to pay collateral or fees, can create a fire-sale situation in which sellers get less money than their property is worth. If James seized his assets, and the appeals court subsequently cut or eliminated Trump’s penalty, the damage would be irreversible; the price to repurchase prized properties would likely end up higher than what he sold them for, if they were even available.
Few appeals result in a reversal of a lower court’s judgement, so there is some logic to the state’s seeking certainty that it will get the money it has been awarded at trial. James (D) claims that state law gives her no flexibility to modify the bond requirement. It’s also true that New York Supreme Court Justice Arthur Engoron, the trial judge in this case, said that Trump’s alleged frauds “leap off the page and shock the conscience,” ordering Trump to pay a huge penalty after concluding that the real estate mogul routinely and significantly manipulated the value of his properties to negotiate better interest rates from lenders and reduce insurance premiums.
No doubt, the appeals process can be abused; in the federal criminal cases against him, Trump is hoping he can drag out trials until after November’s election and, if he wins the presidency again, order the Justice Department to drop the charges against him.
But this case differs from his criminal cases in key respects; one is that he cannot make it to go away if he becomes president again. Moreover, Trump’s New York properties will still be there after he exhausts the appeals process, and the money is not for restitution to pay crime victims. Though Trump was found liable for misstating the values of his properties and other assets by up to $2.2 billion a year from 2011 to 2021, he paid back the loans in question.
Even if none of that were true, though, no defendant should face an appeals process as forbidding as the one Trump faced. As Post columnist Ruth Marcus points out, New York’s system, in which defendants in civil cases must post bond equal to the judgment against them before appealing that judgment, makes it harder to challenge rulings more likely to be unjust. The larger the penalty, the more likely it is to be excessive — and, yet, the harder to raise the cash. Whatever else this chapter in the Trump legal drama shows, it is that New York should revisit its laws on how much a person or entity must put up pending appeal for a civil judgment.
Trump might eventually be forced to pay the full judgment. In the meantime, allowing him to exhaust his legal options without pushing him toward bankruptcy is the fair and correct outcome — as it would be for any other American in the same situation.