TThe lawsuit filed this week by New York Attorney General Leticia James against Donald Trump may be the legal action that finally holds the former president to account. This is because of four important words: the preponderance of evidence.
Trump is under investigation for a variety of alleged misconduct – election fraud in Georgia, financial fraud in Manhattan, and his role in the January 6 attack in Washington. However, these investigations are all criminal cases that carry with them the burden of proving the guilt beyond a reasonable doubt. In the case filed on Wednesday, the standard is the lowest used in civil lawsuits that simply require proof that the defendant likely broke the law. Because of this, it may be this lawsuit that finally holds Trump responsible for the misconduct.
The fact that the lawsuit is civil in nature does not diminish the scale of her allegations. The complaint alleges that Trump, three of his sons, the Trump Organization and others were involved in ten years of financial fraud. According to the complaint, Trump fraudulently inflated the value of his assets by billions of dollars to obtain loans, insurance coverage and tax benefits. The 220-page complaint outlines what James says are fraudulent assessments. Among the alleged inflated assets contained in the financial condition statements, Trump valued the Mar-a-Lago Club of Florida at $739 million, failing to disclose restrictions that prevented it from being sold for residential use. In fact, James claims that it is worth $75 Million. The complaint is full of other property descriptions, the values of which are grossly exaggerated.
Proving these lies by the preponderance of evidence is made easier in a case that relies largely on documents. Falsehood can be proven by showing inconsistent data about asset values between documents. In the case of violent crimes, evidence requires eyewitnesses who can testify about what they observed. But witnesses are subject to cross-examination that can attack their ability to notice or remember what they saw. Not so with documents. Documents don’t lie and don’t forget documents.
In addition to the minimum level of proof in a civil case, there is another advantage in this case over criminal charges. A witness’s protest with the Fifth Amendment privilege against self-incrimination may be admissible as evidence in a civil trial. In this case, Trump and his son Eric Trump reportedly invoked Fifth Amendment rights repeatedly during their oath claims. In a criminal case, the jury will not be told that the person refused to answer questions on the grounds that his response might incriminate him. Revealing this fact to a jury is in itself a violation of the Fifth Amendment. But in a civil case, these rules do not apply. The jury can be told that when Trump was asked to explain what appeared to be inflated assets, Trump made the fifth decision. The juror will also be told in the jury’s instructions that they may draw from his silence what is known as “opposite inference”, i.e. the conclusion that the answer would have been harmful to his case.
James may have opted for civil suits because she lacks the authority as a prosecutor to bring criminal charges of this kind. However, it has referred the case for possible criminal investigation to the US Attorney’s Office for the Southern District of New York and the Internal Revenue Service. Nothing in her civil case prevents them from proceeding with criminal charges.
While this lawsuit will not result in any prison sentence, James is seeking to recover the $250 million she claims was illegally obtained. It is also seeking to bar Trump from engaging in real estate transactions in New York for five years and permanently bar him from serving as an officer or director of a New York company.
More importantly, a sentencing against Trump would expose his apparent lies and hold him accountable for misconduct. In a country that values the rule of law – the idea that no one is above the law – it has been frustrating for many to see justice for Donald Trump seem so elusive.
The sentencing against Trump won’t make him a criminal or send him to prison, but it will classify him as apparently to many – a con man.
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