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The New York Times


UNCONVENTIONAL TRIAL JUDGE COULD REMOVE TRUMP FROM HIS NY EMPIRE

Ben Protess, Jonah E. Bromwich, Kate Christobek and William K. Rashbaum
Thu, December 14, 2023 at 1:27 PM EST·7 min read
672
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Former President Donald Trump speaks to reporters after testifying in his civil
fraud trial at the State Supreme Court building in Manhattan, Monday, Nov. 6,
2023. (Jefferson Siegel/The New York Times)
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NEW YORK — New York Attorney General Letitia James set out to prove that Donald
Trump had committed fraud. Trump took the stand to assail James. Lawyers on both
sides screamed that their opponents were out of line and wasting time.

When 11 weeks of chaotic courtroom wrangling ended Wednesday, the fate of
Trump’s civil fraud trial began to move behind the scenes and into the hands of
Arthur Engoron, the unconventional New York judge overseeing the case. And
because the judge will decide the verdict — there is no jury — he will determine
the future of Trump’s role in his family business.

Engoron ruled before the trial began that Trump had fraudulently inflated his
net worth, and announced an initial round of punishments. That blow recast the
trial as a battle over how steep a penalty the former president would face.
James has indicated that she may press for a fine above the $250 million she
originally sought, concluding that he reaped more ill-gotten gains than was once
thought. She has also asked the judge to bar Trump from running a business in
the state, banishing him from the world that made him famous decades ago.



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The attorney general’s arguments seemed to persuade the judge, and under the
powerful New York law underpinning the case, he has broad authority to punish
Trump. His decision is expected as soon as next month, after closing arguments
in court.

“The judge has extraordinary powers to fashion a remedy to curtail and punish
the misconduct, meaning bad news for Trump,” said Steven Cohen, a former top
official in the attorney general’s office who is now a founding member of the
Blue Raven LLP law firm and teaches corporation law at New York Law School.

Yet Engoron might have already erred when he issued that initial punishment of
Trump, ordering that some of his New York companies be dissolved.

The decision set off a firestorm and appeared to imperil much of Trump’s New
York empire. But interviews with legal experts and a review of court rulings
suggest that the judge may have lacked the authority to dissolve the companies.

An appeals court last week granted Trump’s request to pause the punishment so it
could consider Engoron’s ruling. That could presage a more thorough assessment
of the judge’s decision-making throughout the trial; Trump’s lawyers have placed
their hopes on an appeal.

“President Trump very much appreciates the court’s consideration and ruling,”
Christopher Kise, one of Trump’s lawyers, said in a statement after the appeals
court granted the request, adding that it would help “pave the way for a much
needed, and deliberative, review of the trial court’s many errors.”

Alternatively, Engoron could adjust the order himself. If Trump’s lawyers
persuade him, he could use the expected January verdict to change his position
before the appeals court has its say.

Al Baker, a spokesperson for the court system, said that it would be
inappropriate to comment on a continuing case, and referred “to the actions and
rulings in this matter which are all part of the public record.” A spokesperson
for James declined to comment.

The trial is the product of a lawsuit that James filed last year against Trump,
his adult sons and their family business, accusing them of fudging the value of
his assets on years of annual financial statements they provided to banks and
other lenders.

James contended that the statements were so inflated that the Trumps had
defrauded the banks. Her case hinged on years of documentary evidence and the
testimony of the Trumps themselves, who acknowledged a role in creating the
statements.

For its part, the defense called expert witnesses to emphasize that the
valuation of real estate is subjective, and that they had found no fraud. The
defense also summoned the bankers, who testified that they had done their own
analysis of Trump’s net worth and had concluded it was safe to lend him money —
business that was profitable for them.

Despite the trial’s hinging on spreadsheet cells, accounting rules and financial
arcana, it took on a distinctly schoolyard atmosphere: Trump stormed out of the
courtroom one day, a witness answered his mobile phone while on the stand, Kise
likened James’ team to the Kremlin and one of the attorney general’s lawyers
snapped at Kise for issuing “a bunch of ridiculous objections.”

The tension had already boiled over early in the trial, when another of the
attorney general’s lawyers demanded that Trump’s team “be more respectful,”
prompting Kise to reply, “No.”

Engoron presided over the ruckus, often looking like an exasperated parent
gently trying to restore order while defusing tension with self-deprecating
humor. He dispensed birthday wishes to lawyers and once remarked, “I’m not as
dumb as I look.”

Trump, a Republican, took aim at the judge, who, like James, is a Democrat. He
portrayed them both as members of a left-wing cabal out to derail his latest run
for the presidency. In the courtroom, Kise repeatedly accused the judge of bias.
On social media, Trump took aim at Engoron’s family; court officials later said
that numerous antisemitic threats had been made against the judge.

The former president and his defense team also attacked Engoron’s law clerk,
landing them in trouble with the judge, who imposed a limited gag order to
prevent them from speaking ill of court staff. Trump twice violated the order,
resulting in $15,000 in fines.

Things are now likely to get a lot worse for Trump. With the courtroom portion
of the trial concluding, Engoron, who has appeared sympathetic to James’ case
from the beginning, is poised to impose a sweeping array of punishments.

In addition to the financial penalty, Engoron could institute five-year bans
blocking Trump and his company from striking commercial real estate deals in New
York or seeking loans from banks chartered in the state. Most notably, Engoron
could permanently bar Trump from running a company in New York, a move that
would essentially erase the former president from much of his company’s
operations.

Although Trump has largely turned the page from business to politics, those
punishments would nonetheless constrain his company and be a shameful capstone
to his half-century as a New York businessperson.

Engoron’s first punishment of Trump — dissolving some of his New York companies
— is less likely to stick.

The order, which came shortly before the trial began, canceled a special type of
business certificate that allows some of Trump’s New York companies to operate
using certain names. The punishment would force 10 or so businesses — including
Trump’s New York golf clubs and the entity that manages his hotel overlooking
Central Park — to obtain new certificates, a relatively minor headache.

The next line of Engoron’s order went further, referring to the “dissolution of
the canceled LLCs,” legalese for the limited liability corporations that control
Trump’s properties. In other words, the judge seemed to be terminating not only
the certificates, which can be replaced, but also the actual Trump companies
that own or manage his golf resorts, hotel and other assets. For those
companies, it appeared to be lights out.

Even James had not sought that severe a punishment. Under New York law, the
experts said, a judge can dissolve an LLC only if one of its members seeks to.

“He’s going beyond what the statute seems to allow,” said David W. Lowden, a
lawyer who for decades specialized in commercial transactions and corporate law
at Stroock & Stroock & Lavan. Lowden said that while many observers had
predicted that the ruling would crush Trump’s New York operations, it might
ultimately be a simple bureaucratic irritation, resolvable through paperwork.

Other experts noted that the judge’s order applied to all 10 or so of Trump’s
New York companies that have this special type of business certificate, not just
the much smaller subset implicated in James’ complaint. Imposing a punishment on
a company not accused of wrongdoing most likely runs afoul of various legal
principles, the experts said, and could prompt the appeals court to intervene.

“He may have bought himself an appellate problem and fueled an otherwise dubious
claim of bias,” Cohen said.

But despite the monthslong slog of a trial — and the risk of reversal — Engoron
maintained his sense of sarcasm. When Kise said this week that he wanted to tie
up some loose ends for the sake of his appeal, the judge asked, “You’re going to
appeal?”

c.2023 The New York Times Company

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