Orin Kerr posted a thought-provoking response to my post from several days ago criticizing New York State’s $450 million civil fraud verdict against Donald Trump. Orin pointed out that New York State Attorney General Letitia James has filed other civil fraud actions against businesses, in addition to the action she filed against Donald Trump, which is useful to know. But, in my view, the civil fraud action brought against former President Donald Trump was a case of selective prosecution of a victimless crime, brought because of Trump’s political views and because he is the Indeed candidate of the Republican Party in the 2024 presidential election. Selective prosecution raises questions of both due process and equal protection clauses, of the kind that led the Framers to ban Bills of Attainder and Ex Post Facto laws, clauses that are relevant here too.
Orin disputes my claim that New York banks do not rely on borrowers’ claims regarding the amount of wealth they own, but make their own independent assessment of borrowers’ wealth, so Trump’s alleged fraud was a crime without casualties. No harm no deception. Orin gives the hypothetical example of a person who returns home, legally drunk, arrives safely at her house, and then is arrested and stripped of her license because she endangered the public. Orin argues that this is perfectly appropriate behavior on the part of the police because the drunk driver endangered the public in violation of the law. By analogy, Orin argues that Trump endangered New York’s real estate market by borrowing money while offering inflated appraisals of his real estate assets, even though lenders were discounting his appraisals and doing their own independent appraisals before lending to him. loans which he then repaid.
First, there is a fundamental difference between Orin’s hypothesis and what Donald Trump actually did in this case of victimless civil fraud. Donald Trump signed contracts to borrow money from particular lenders who then performed due diligence on the value of his real estate assets. There was a private contract between Trump and the wealthy banks he borrowed from. Trump paid back all the money he borrowed, and there was no victim in the New York State civil fraud case who claimed he was defrauded. But, when a person drives home legally drunk and arrives safely at his home and living room, there is no consent to his action from the other drivers and pedestrians on the road that the drunk driver has endangered. In Orin’s hypothesis there is no contractual clause to assume the risk, while there was a contractual clause between Trump and those who lent him money. Witnesses testified that they would willingly lend money to Trump in the future, and no one appeared to accuse Trump of fraud except the politically ambitious New York State Attorney General who was probably trying to win over Democratic primary voters they hate pathologically Trump into a future governor. or senatorial primaries.
Second, while Orin is right that driving home drunk is a crime even if you get home safely, there is no prosecutor in the world who would try to deprive such a person of his driver’s license, as Orin would , or to enter his property. In Edwards vs. the police, 2 New Zealand Law Review 194 (1994), Edwards was riding his motorbike home and was being followed by a police officer who believed Edwards was drunk. Edwards drove to his house, turned off and parked his motorcycle in the driveway, then the police officer who had followed Edwards arrested him on his property and took him to the police station against his will, and a Breath test indicated the presence of alcohol.
On appeal, Edwards’ conviction was overturned and the court stated that “Edwards was subjected to unlawful restraint and confinement amounting to assault and false imprisonment. *** [I]It is important in a case like this that the Court vindicates and gives tangible recognition to the substantial violation of rights that has occurred. The only way this can be done is to exclude evidence that arises directly and substantially from the violation.” Steven Got Calabresi et al., The American Constitution and comparative constitutional law: texts, cases and materials at 1.25pm (Foundation Press 2016). We strongly suspect that most American juries, judicial investigators or district attorneys would have the same reaction Edwards vs. the police, which was reached by the New Zealand Court of Appeal. Technically, Edwards broke the law by riding home on his motorcycle while drunk, but the police officer who arrested Edwards upon reaching his property safely was found to have committed “assault and false imprisonment.” .
Third, Orin places great importance on the fact that in New York State, a state license is required to conduct business, and such licenses, once obtained, require ethical conduct. In Germany, Japan, South Africa and Israel, by contrast, there is the right to pursue any occupation one chooses, subject to the power of the government to make regulations through just laws, enacted for the general good of all the people. Most American states regulate over 100 different occupations, most of which do not harm the general good of the entire people. Among the regulated professions there are: the butcher, the florist, the owner of a tanning salon, the barber, the plumber or the optician. These laws would all be unconstitutional in Germany, Japan, South Africa or Israel. All the Constitutions of these four countries explicitly protect freedom of occupation. In the United States, however, such laws exist only because of Justice Stephen Field’s dissent The slaughterhouse cases, 83 U.S. 36 (1873) garnered only four votes and not five. The Supreme Court reiterated his support for unlimited regulation of professional freedom Williamson v. Lee Optical Co., 348 US 483 (1955) where he applied the rational basis text to employment freedom claims. In my opinion, these Supreme Court decisions are profoundly wrong and should be overturned. To be sure, there are professions for which licensing should be required such as: doctors, airline pilots, engineers or lawyers. State regulation of the freedom to operate a business in New York State should be permitted when just laws are enacted for the general good of all the people. Corfield v. Coryell(6 Fed. Cas. 546, n. 3, 230 CCEDPa. 1823 (opinion of Justice Bushrod Washington). Otherwise there should be a presumption of liberty and not a presumption of serfdom.
Fourth, the idea held by some, not necessarily Orin, that we are all born subjects to be regulated is in profound conflict with the view of both the authors of the Declaration of Independence and the Fourteenth Amendment, and of the Speaker of the House of Representatives, Schuyler Colfax, thought he was applying the rights provided by the Declaration of Independence to the states. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Donald Trump has the constitutional right to do business in the State of New York, without any regulation, except through just laws enacted for the general good of all the people.
I reiterate my position that New York State has violated Donald Trump’s First Amendment free speech rights; your rights under the due process, equal protection, excessive fines, and provisions of the Bill of Attainder; and that he was deprived of the freedom of employment necessary to protect his “life, liberty and pursuit of happiness”. Because New York State’s civil fraud verdict interferes with former President Donald Trump’s right to run for president, the U.S. Supreme Court should hear this case as quickly as possible.