It’s not surprising that Donald Trump viciously insults Letitia James, the New York State attorney general who has taken him to court. What is a little surprising is that he keeps bashing the judge who is trying him, to the point of saying he should be disbarred. He also attacked the judge’s law clerk, earning him a stern warning. You don’t tug on Superman’s cape, you don’t spit into the wind and you don’t — I would think — defy and needle the very person who holds your financial fate in his hands.
I think there are at least three reasons that Trump is attacking Justice Arthur Engoron, the 74-year-old Democrat and former cabdriver who is presiding over Trump’s civil trial on fraud charges in New York State Supreme Court (which, despite its lofty name, is the trial-level court). Two are obvious, one less so.
One obvious reason is that Trump is furious that Engoron ruled that he inflated the value of his assets and effectively took away the licenses Trump needs to operate his properties in New York. Billionaire-hood is a crucial component of Trump’s self-image.
Another obvious reason is that Trump likes the publicity. Trump complained that the trial took him off the presidential campaign trail, but in fact his presence in the courtroom wasn’t required. He chose to be there because he knew he’d get more camera time than if he were working the crowd in, say, Nashua, N.H.
A less obvious reason is that Trump and his lawyers are looking past Engoron to the almost inevitable appeal. That mostly unspoken possibility popped up in court on Tuesday when Engoron told Trump’s lawyers not to reintroduce arguments that he’s already knocked down.
“That’s why we have appeals,” Engoron said.
Trump could appeal Engoron’s decision to the state Appellate Division. If he loses there he could try to get the Court of Appeals, New York’s highest court, to review the decision. If he loses at the Court of Appeals, his lawyers could conceivably try to go to the U.S. Supreme Court. That would be a stretch, though, because state courts are the final arbiters of state law. To date, Trump’s lawyers haven’t raised any issues related to federal law or the Constitution that the U.S. Supreme Court could take up.
While Trump and his team seem to regard Engoron as a lost cause, there’s no guarantee that an Appellate Division court would be any more receptive. Last week one rejected Trump’s attempt to delay the fraud trial and to have many of the accusations against him thrown out.
This week I interviewed Danya Perry, who is defending Trump’s former personal lawyer, Michael Cohen, against a lawsuit by Trump in federal court accusing Cohen of breaching his fiduciary duty.
I asked her about the Trump team’s strategy of repeatedly bringing up arguments that Engoron has already rejected. She said it’s what lawyers call “preserving the record” — making sure that trial records include all arguments that they might want to put forth on appeal. It’s a basic principle of litigation that any argument that isn’t raised at trial cannot be raised on appeal.
“The four saddest words from the Court of Appeal are these: ‘Great argument; not preserved,’” Robert J. Stumpf Jr. and Karin Dougan Vogel of the law firm Sheppard, Mullin, Richter & Hampton wrote in 2000, referring to the California appeals court.
On the other hand, raising the same issues again and again — sometimes disparaged as “papering the record” — goes beyond what the law requires and may just annoy the judge. Engoron has already fined five of Trump’s lawyers $7,500 each for making what he called “indefensible” arguments.
Trump’s lawyers, in trying to keep their client happy, “may find themselves wedged between the requirement that they preserve all of their client’s potential arguments for an eventual appeal and the likelihood of incurring additional sanctions for continuing to make similar unsuccessful and potentially ‘frivolous’ arguments,” Janet R. Gusdorff, an attorney specializing in appeals, wrote to me in an email.
Then again, Alina Habba, an outspoken member of Trump’s legal team, gave no sign of feeling wedged on Monday when she called her client the sitting president (false) and asserted that his golf course in Doral, Fla., and his Mar-a-Lago estate would each sell for more than $1 billion (also false, by all indications). Trump nodded approvingly.
That suggests a fourth reason Trump and his lawyers are challenging Engoron. It’s related to publicity-seeking, but goes beyond it. Trump’s modus operandi is to undermine any institution that stands up to him, whether the news media or the military or the courts. Causing people to lose confidence in the judiciary may be “precisely” what Trump is banking on, Gusdorff wrote, “to minimize the effects of the lawsuit and increase voter support for his 2024 presidential bid.”
Elsewhere: ‘Financial Wellness’ Has Declined
Financial wellness among workers dropped to 42 percent in June, according to a recent Bank of America Workplace Benefits Report, the lowest rate since the report began in 2010. Based on a nationwide survey, the report also found that two-thirds of workers in June believed the cost of living was outpacing growth in their salary or wages, compared with 58 percent in February 2022.
Quote of the Day
“Before the Biden administration, antitrust was mostly dead. It had picked up a bit under Trump, but mostly no one thought much about this area of law. And the reason was pretty simple. Nothing was happening. The F.T.C. was using its authority to go after powerless actors, such as Uber drivers, church organists, bull semen traders and ice skating teachers.”
— Matt Stoller, “‘Never Seen Anything Like It’: The Biggest Month in Antitrust in 50 Years,” Substack newsletter (Sept. 30)
I.C.Y.M.I.
Paul Krugman and I exchanged views about the likelihood of a recession for a piece that appeared in his newsletter last week and in the print newspaper on Sunday. You can read it here.