On The Civil CasesThe Donald Have Been Clovered, Here’s Why

The doors are Closing but he has small hands

 

The New York Times

For months now, the country has been riveted by the four criminal cases against Donald Trump: the New York state case involving hush-money payments to an adult film star, the federal case involving classified documents, the Georgia election interference case, and the federal election interference case. But some have been postponed or had important deadlines delayed. The only case with a realistic shot of producing a verdict before the election, the New York case, involves relatively minor charges of falsifying business records that are unlikely to result in any significant prison time. None of the other three are likely to be resolved before November.

It’s only the civil courts that have rendered judgments on Mr. Trump. In the first two months of 2024, Mr. Trump was hit with more than half a billion dollars in judgments in civil cases — around $450 million in the civil fraud case brought by the New York attorney general, Letitia James, and $83.3 million in the defamation case brought by the writer E. Jean Carroll.

For Trump opponents who want to see him behind bars, even a half-billion-dollar hit to his wallet might not carry the same satisfaction. But if, as Jonathan Mahler suggested in 2020, “visions of Donald Trump in an orange jumpsuit” turn out to be “more fantasy than reality,” civil justice has already shown itself to be a valuable tool for keeping him in check — and it may ultimately prove more successful in the long run at reining him in.

The legal system is not a monolith but a collection of different, interrelated systems. Although not as heralded as the criminal cases against Mr. Trump, civil suits have proved effective in imposing some measure of accountability on him, in situations where criminal prosecution might be too delayed, divisive, or damaging to the law.

To understand why the civil system has been so successful against Mr. Trump, it’s important to understand some differences between civil and criminal justice. Civil actions have a lower standard of proof than criminal ones. In the civil fraud case, Justice Arthur Engoron applied a “preponderance of the evidence” standard, which required the attorney general to prove that it was more likely than not that Mr. Trump committed fraud. (Criminal cases require a jury to decide beyond a reasonable doubt that the defendant committed a crime, a far higher standard.) As a result, it is much easier for those suing Mr. Trump in civil court to obtain favorable judgments.

These judgments can help — and already are helping — curb Mr. Trump’s behavior. Since Justice Engoron’s judgment in the civil fraud case, the monitor assigned to watch over the Trump Organization, the former federal judge Barbara Jones, has already identified deficiencies in the company’s financial reporting. After the second jury verdict in Ms. Carroll’s favor, Mr. Trump did not immediately return to attacking her, as he did in the past. (He remained relatively silent about her for several weeks before lashing out again in March.)

Returning to the White House will not insulate Mr. Trump from the consequences of civil litigation. As president, he could direct his attorney general to dismiss federal criminal charges against him or even attempt to pardon himself if convicted. He cannot do either with civil cases, which can proceed even against presidents. (In Clinton v. Jones, the Supreme Court held that a sitting president has no immunity from civil litigation for acts done before taking office and unrelated to the office. And as recently as December, the U.S. Court of Appeals for the D.C. Circuit made clear that even if the challenged acts took place during his presidency when the president “acts in an unofficial, private capacity, he is subject to civil suits like any private citizen.”)

It may also be difficult for Mr. Trump to avoid the most serious penalties in a civil case. To appeal both recent civil judgments, Mr. Trump must come up with hundreds of millions of dollars in cash or secure a bond from an outside company. Although he managed to post a $91.6 million bond in the Carroll case, he initially encountered what his lawyers described as “insurmountable difficulties” in securing the half-billion-dollar bond he was originally ordered to post in the civil fraud case. An appeals court order last week cut that bond to $175 million — but if Mr. Trump cannot post this bond, Ms. James can start enforcing her judgment by seizing his beloved real estate or freezing his bank accounts. And even though it appears that he will be able to post the reduced bond, the damage done to his cash position and liquidity poses a significant threat to and limitation on his ongoing business operations.

Furthermore, through civil litigation, we could one day learn more about the inner workings of the Trump empire. Civil cases allow for broader discovery than criminal cases do. Ms. James, for instance, was able to investigate Mr. Trump’s businesses for almost three years before filing suit. And in the Carroll cases, Mr. Trump had to sit for depositions — an experience he seemed not to enjoy, according to Ms. Carroll’s attorney. There is no equivalent pretrial process in the criminal context, where defendants enjoy greater protections — most notably, the Fifth Amendment privilege against self-incrimination.

Finally, civil cases generally have fewer externalities or unintended consequences. There are typically not as many constitutional issues to navigate and less risk of the prosecution appearing political. As a result, civil cases may be less divisive for the nation. Considering the extreme political polarization in the United States right now, which the ongoing election will probably only exacerbate, this advantage should not be underestimated.

 

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 David Lat (@DavidLat), a former federal law clerk and prosecutor, writes Original Jurisdiction, a newsletter about law and the legal profession. Zachary B. Shemtob is a former federal law clerk and practicing lawyer.