Isaac Laquedem

Judge Engoron was the Trump fraud trial judge, but he wrote for the court of appeals

Judge Arthur F. Engoron presided over New York's civil fraud trial against Donald Trump, two of his children, two of his associates, his trust, and nine companies that he controls.  On February 16 Judge Engoron handed down his final ruling on February 16.  In 92 pages he held Mr. Trump and various entities liable for $355 million plus interest, found his sons Eric Trump and Donald Trump, Jr. liable for $4 million each, and barred Mr. Trump, his accountant Allen Weisselberg, and Jeffrey McConney (formerly the Controller at the Trump Organization) from serving as an officer or director of any New York entity for three years. 

Political aficionados with a thirst for blood can be excused for skipping to the last two pages, where the judge laid out the penalties he was imposing, in the manner of the impatient reader of a mystery novel who reads only up to the crime itself and then jumps to the detective's solution, skipping over the 200 pages of investigation in the middle.  The casual reader who skips over Judge Engoron's 6 pages that recite the history of the case, the 67 pages discussing the facts, and the 17 pages of legal conclusions has missed a great deal.  Herewith Isaac's take on what Judge Engoron said.

First, Judge Engoron explained why New York cares about financial fraud.  "New York State, particularly New York City, is the financial capital of the country and one of the financial capitals of the world."  (Page 3.)  "The common excuse that 'everybody does it' is all the more reason to strive for honesty and transparency and to be vigilant in enforcing the rules.  Here, despite the false financial statements, it is undisputed that defendants have made all required payments on time; the next group of lenders to receive bogus statements might not be so lucky.  New York means business in combating financial fraud."  (Page 4.)

Before he dug into the testimony, Judge Engoron threw a dash of shade at Mr. Trump's lead lawyers, Christopher Kise and Alina Habba, stating (correctly) that as the state sought only equitable relief in the form of injunctions and disgorgement of fraudulent profits, the defendants were not entitled to a jury.  The shade came in the form of a footnote on page 6, "In any event, neither party applied nor moved for a jury trial."

Then the judge described the testimony of the 14 non-party witnesses (mostly bankers and outside accountants), the five individual defendants, the eight other witnesses from the Trump Organization, the state's expert, and the 13 expert witnesses that the defendant called.  What's important in his descriptions of the testimony of the witnesses is not what they testified to, but the judge's evaluation of their credibility.  (Isaac will explain why this is important later on.) 

Judge Engoron did not comment on the credibility of the 14 non-party witnesses.  He began his saltiness with four of the five individual defendants.  In the  judge's view, Jeffrey McConney's credibility was "severely impaired" (page 25), then "further compromised" (also page 25), and then further strained when he could not recall if his separation agreement prohibited him from voluntarily cooperating with governmental investigations of the Trump Organization, which lapse the court found "implausible" (page 26).  Allen Weisselberg came in for more direct treatment: his separation agreement bars him from cooperating with the government, which "renders his testimony highly unreliable.  The Trump Organization keeps Weisselberg on a short leash, and it shows." (page 26.)  The judge turned to Eric Trump, whose "credibility was severely damaged when he repeatedly denied knowing that his father ever even compiled a [statement of financial condition] that valued his assets and showed his net worth 'until this case came into fruition.'" (Page 32.)  And the court kept firing salvos in his direction: "When the documentary evidence against him became overwhelming, Eric Trump reversed his previous testimony."  (Page 32.)  "Eric Trump's testimony [about appraisals] was shown to be false when he was confronted with the ample contemporaneous documentary evidence demonstrating otherwise." (Page 33.)

And then there was Donald Trump himself, whom Judge Engoron deflated in a footnote.  On page 36, the judge wrote, "Nonetheless, Donald Trump insisted that he believed Mar-a-Lago is worth 'between a billion and a billion five' today, which would require not only valuing it as a private residence, which the deed prohibits, (footnote 19), but as more than the most expensive private residence listed in the country by approximately 400%."  Footnote 19 reads, "A fact of which he is well aware, having signed the deed himself."  He concluded with this politely damning description of the former president's time on the stand: "Overall, Donald Trump rarely responded to the questions asked, and he frequently interjected long, irrelevant speeches on issues far beyond the scope of the trial.  His refusal to answer the questions directly, or in some cases, at all, severely compromised his credibility."  (Page 37.)

Yet it was not the Trump family but its hired experts that drew the sharpest of the judge's stiletti.  One expert witness, Steven Witkoff, "conceded that he is neither an appraiser nor an accounting expert, nor is he familiar with what 'estimated current value' is under GAAP."  (Page 48.)  Of Steven Laposa, whom the defense offered as an expert witness on real estate research, the court observed that he had "formed no opinion as to whether any of the valuations at issue in this case were accurate, and, prior to this assignment, he had no experience preparing or reviewing personal financial statements."  (Page 50.)  The next expert witness earned a more severe burn from the judge.  He was Gary Giuletti, offered as an expert in surety underwriting and surety brokering.  He testified that he has known Donald Trump for about 25 years, plays golf and eats lunch with him, and is a member of "a bunch of his clubs."  He's also the Trump Organization's insurance broker.  (Page 51.)  The judge's evaluation:  "In its over 20 years on the bench, this Court has never encountered an expert witness who not only was a close personal friend of a party, but also had a personal financial interest in the outcome of the case for which he is being offered as an expert."  (Page 51.)  In 2022, Mr. Giuletti's firm earned $1.2 million in commissions from insurance that he handled for the Trump Organization. 

Mr. Giuletti got off easier than Robert Unell, whom the Trump Organization offered as an expert in commercial real estate finance and banking.  The court summarily disposed of his work: "On the whole, the Court was unable to ascribe any reliability to Unell's 'expert' opinions, finding them unresearched, unsupported, inconsistent, and contradicted by ample other documentary and testimonial evidence."  (Page 56.)

Why are the trial judge's conclusions on credibility important?  Judge Engoron undoubtedly knew that Mr. Trump and the other defendants, except possibly Allen Weisselberg, would appeal his final decision.  It's a principle of appellate law that the appellate court will usually defer to the trial judge's assessment of the credibility of the witnesses.  The trial judge sees and hears the witnesses and their demeanor; the appellate judges read their words from a transcript and only rarely will watch or listen to the testimony. Judge Engoron underscored this point on page 6: "Witnesses testified from the witness stand, approximately a yard from the Court, who was thus able to observe expressions, demeanor, and body language."  My sense is that he's emphasizing to the appellate court that most of the Trump Organization's principal witnesses, including Donald Trump, Eric Trump, and Ivanka Trump, were simply not credible.

As with a good detective story, the description of the crime is at the beginning and the resolution is at the end.  In the case of Judge Engoron's decision, the good stuff is the part in the middle.

One of Donald Trump's upcoming trials commemorates Benjamin Harrison's "spectacularly corrupt administration"

Donald Trump will go to trial on March 4, 2024 in federal court in the District of Columbia on the charges related to his attempts to overturn the 2020 election result.  Why March 4?  It's a Monday, and long trials often start on Mondays.  But Judge Tanya Chutkan, who chose the date, may have intended to make a sly historical reference.  Elected presidents are inaugurated on January 20 now, but before 1937 they were inaugurated on March 4.  March 4 is thus the anniversary of the inauguration of all the elected presidents from John Adams to Franklin Roosevelt in his first term (1933).  It was on March 4, 1889 that Benjamin Harrison (5'6", 160 pounds) was inaugurated.  Harrison's "spectacularly corrupt administration" (the words of historian Heather Cox Richardson) produced a collapse of the stock market and the Panic of 1893.

Celebrations of Benjamin Harrison are few and far between.  Judge Chutkan has figured out an appropriate commemoration, and Mr. Trump will get to play the leading part.

Fulton County's indictment of Donald Trump and friends, analyzed

            The 41-count indictment that a Fulton County grand jury handed down today is riveting in its narrative and notable in its detail.  Isaac has read it with great interest.  The grand jury’s accusations are not vague in time and place, nor are they more vague than necessary in describing the witnesses to the 161 numbered acts in furtherance of the election plot.  Those in Mr. Trump’s inner circle who are yet uncharged will read the indictment attentively to determine which of their friends are “Unindicted Conspirator One,” “Unindicted Conspirator Two,” and the other eighteen or so of the unnamed additional conspirators.

            All 19 defendants were charged with violating the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act.  This charge is particularly ironic, or perhaps poetically just, when applied to Rudolph Giuliani, as he came to fame in the 1980s for using the federal RICO Act to dismantle the core of the New York mafia; as a federal prosecutor he obtained indictments against a long list of the mob’s leaders and lieutenants, convicting most of them.

            The indictment has some Easter eggs within its bulk.  I’ve alluded to one, which is the game of guessing the identities of the unindicted conspirators.  Another is to examine who got indicted with whom.

            The indictment has 41 counts and names 19 defendants.  Every defendant was charged with violating the Georgia RICO Act.  No defendant, however, was charged with violating even half of the 41 counts, and no count except the RICO charge names more than 7 defendants.  Messrs. Trump and Giuliani lead the pack with 13 charges each, sharing in 7 of them.  The runner-up in the indictment list is more obscure; he is Ray Stallings Smith III, a lawyer at a small firm in Atlanta whose practice includes election law.  He faces 12 charges, including all 7 of the charges that name both Mr. Trump and Mr. Giuliani. 

            At the other end of the spectrum lie Jenna Ellis, Jeffrey Clark, and Mark Meadows, who face only one charge each in addition to the all-hands-on-deck RICO charge (Count 1). Ms. Smith’s [thank you, Kari Chisholm, for catching the error] Ellis's charge (Count 2), which she shares with attorneys Giuliani, Eastman, and Smith, is that she participated in inveigling members of the Georgia Senate to appoint impostor electors.  Mr. Clark’s charge (Count 22), which he faces alone, is that he criminally attempted to knowingly make the false statement that the Justice Department had ”identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia,” asking for permission from acting attorney general Jeffrey Rosen and acting deputy attorney general Richard Donoghue to send that message to Georgia’s governor, speaker of the house, and president of the senate.  Count 28 names only Mr. Trump and Mark Meadows and charges them with having unlawfully “solicited, requested, and importuned” Brad Raffensperger, the Georgia secretary of state, to unlawfully alter the certified vote.

            So who did get indicted with whom?  (It sounds rather like high school gossip.)  Three of Georgia’s fake electors are among the indicted.  They are the only ones charged with Counts 8, 10, 12, and 14.  Two of them are the only ones charged with Counts 16 and 18.  Those six counts all relate to preparing and signing the false certifications.  They form a distinct group of charges and defendants. 

            A second group of defendants share Counts 9, 11, 13, 15, 17, and 19.  They are Messrs. Trump, Giuliani, Eastman, Chesebro, Smith, and Cheeley, and those counts relate mainly to the attempts to file the false elector certifications. 

            A third group of defendants are Sidney Powell, Cathleen Latham, Scott Hall, and Misty Hampton, the only ones charged with Counts 33 to 38.  Those counts describe the efforts to obtain or break into the voting machines of Coffee County.  Ms. Powell was a visible advocate for Mr. Trump’s cause, but the indictment relegates her to a minor part in the Georgia portion of the broader conspiracy.  Based on the structure of the indictment, Donald Trump and Rudy Giuliani were at its center, and Mr. Smith wasn't far from the core.  The skills of high school gossip tell us not who's going out with whom, but who's going down with whom.

"Exit, pursued by an alligator"? Donald Trump's legal team learns that a sad tale's best for summer

The Trump legal team's response to the Justice Department over Mr. Trump's request that the court appoint a special master to review the documents that the government recovered from Mar-A-Lago, filed today in federal court in Florida, is not up to the usual low standard of the team's legal work.  The hilarity begins on page 1, when Mr. Trump's lawyers call it "extraordinary" that the Justice Department believes that the Justice Department should be "entrusted with the responsibility of evaluating its unjustified pursuit of criminalizing a former President's possession of personal and Presidential records in a secure setting."

On the next page the lawyers do acknowledge that something called the Presidential Records Act exists, one sentence before they step off of the bridge into the moat of alligators:  "Thus, there is no question and, indeed there is broad agreement, that the matters before this Court center around the possession, by a President, of his own Presidential records."  Not content to swim with the alligators, the lawyers then offer themselves as nutriment for the carnivorous:  "Indeed, the warrant intentionally blurs important distinctions in referring to the ability of FBI agents to seize 'Presidential Records' (the PRA never concerns itself with traditional classification labels) while wrongfully suggesting the applicability of the Espionage Act and referring to expectations of recovering classified or highly classified documents."

Where do the alligators come in?  Let's take their missteps one at a time. 

First, it is traditional, and in fact statutory, for the Justice Department to investigate possible federal crimes.

Second, while Mar-A-Lago may be a "secure setting" in the sense that the doors lock and the security cameras work, it is not a secure setting in the way that the SCIF in Congress is a secure setting.  ("SCIF" stands for "Sensitive Compartmented Information Facility."  There's one in the White House and another in Congress.  They tend not to be found at country clubs.)  And Mar-A-Lago has become known for lapses in security: in March 2019, a Chinese "business consultant" managed to enter Mar-A-Lago with a bagful of electronics and get past five Secret Service agents and into the reception area, all while Mr. Trump was still the president and had a robust cadre of Secret Service agents on the property.

Third, the lawyers inexpertly said that the case is about the possession, by an [ex-]President, "of his own Presidential records."  Are they "his own Presidential records"?  In one syntactical sense, they are; that is, they are records about Mr. Trump's four years as president.  In the legal sense, however, they are not "his own Presidential records," for the Presidential Records Act, 44 USC §2201 ff, states that "The United States shall reserve and retain complete ownership, possession, and control of Presidential records."  The Presidential Records Act also states that when a president leaves office, "the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President."  The law is quite clear that the Presidential records of Mr. Trump's term don't belong to him; they belong to the nation, and the Archivist is entitled to hold and preserve those records.

Fourth, they erred badly in suggesting that the affidavit supporting the search warrant improperly referred to the possibility that the FBI might recover classified documents from Mr. Trump's office at Mar-A-Lago - because the FBI did recover classified documents.  

Why do Mr. Trump's lawyers sign their names to such shoddy legal work?  One possibility is that they know their client has no real defense, and they're serving not as his lawyers so much as his public relations agents.  Another possibility is that they themselves don't know how bad their arguments are, but they're the best of the lawyers that are still willing to tie their reputations to Donald Trump.  (Rope, meet millstone.) 

The third possibility is that they themselves are among the alligators, hoping to dine well on Mr. Trump's legal troubles and then to get out before the final crash, rather like the guests at the legendary ogre's feast who ate and drank well, realizing only too late that the ogre would dine on the last remaining guests.

Gutta cavat lapidem, non vi sed saepe cadendo

"Dripping water erodes rock, not by force but by persistence."

January 2021:  The Department of Justice subpoenas cell phone location data from Google to identify who was in the Capitol on January 6.

May 12, 2022:  The January 6 committee issues subpoenas to Rep. Kevin McCarthy and four other House Republicans.

June 22, 2022:   The Department of Justice executes a search warrant at the home of former Acting Assistant Attorney General Jeffrey Clark, taking his computer and cell phone.

June 22, 2022:   The Department of Justice simultaneously seizes the cell phone of Trump lawyer and Big Lie advocate John Eastman.

July 2022:  Trump associate Roger Stone and his wife agree to pay $2.1 million to the IRS to settle their liability for back income taxes.

August 3, 2022:  It transpires that the grand jury investigating the January 6 insurrection issued subpoenas to former White House counsel Patrick Cipollone and Patrick Philbin.

August 8, 2022:  The FBI executes a search warrant on Donald Trump's quarters at Mar-A-Lago.

 

Yesterday we learned more about the pardon list

Amusement and consternation followed the revelation earlier this week that retired law professor John Eastman, one of the team that worked to undo the 2020 election in the waning days of President Trump's term, had sent an e-mail to Mr. Trump's personal attorney Rudy Giuliani shortly after the January 6 insurrection.  Professor Eastman wrote, "I've decided that I should be on the pardon list, if that is still in the works." 

What "pardon list"?  Who was working on it?  The Select Committee had hinted two weeks ago that several lawmakers had asked for pardons.  Yesterday's hearing opened the door a little further when witnesses testified that six staunch House supporters of President Trump had asked for pardons: Mo Brooks of Alabama, Matt Gaetz of Florida, Andy Biggs of Arizona, Louie Gohmert of Texas, Scott Perry of Pennsylvania, and Marjorie Taylor Greene of Georgia.

How many more names were on the White House pardon list?  I think we're going to find out.

When it absolutely, positively has to be in the vice president's hands overnight, call Senator Ron Johnson

Senator Ron Johnson of Wisconsin has received some unwanted fame after being outed yesterday as a bit player in the attempt to steal the 2020 presidential election.  His role was to deliver to Vice President Pence envelopes with the ballots of fake electors from Wisconsin and Michigan.  One of his staffers, Chris Riley, texted an aide to the vice president just after noon on January 6, before the count started, telling him that "Johnson needs to hand something to VPOTUS please advise."  When he told the aide that the "something" was an alternate (i.e., fraudulent) slate of electors, the aide told Mr. Riley not to give the envelope to the vice president.  Asked for comment, Senator Johnson said merely that he had "no idea" who had delivered the fraudulent ballots to his office, leaving the inference that his office attempted to deliver the ballots to Mr. Pence as an incidental sort of constituent service and not as any part of a scheme to steal the election.

Senator Johnson has not posted anything yet on his official Facebook page about the spotlight that the January 6 committee cast yesterday on his role as a minor political bagman, but his constituents aren't waiting for him to respond.  They've flooded his recent posts on the Keystone XL pipeline and the danger of vaccinating babies against Covid with comments on his newfound national notoriety. 

The pithiest comment about the Wisconsin portion of the plot came from the executive director of the Wisconsin republican party, who on January 4 texted someone the message "Freaking Trump idiots want someone to fly original elector papers to the senate President.  They're going to call one of us to tell us just what the hell is going on."  We'll learn more when the hearings resume tomorrow.

A song for Rudy Giuliani and his pardon list

John Eastman, a retired law professor, told the January 6 Special Committee that he had e-mailed Rudy Giuliani shortly after the January 6 insurrection, writing "I've decided that I should be on the pardon list, if that is still in the works."  He joins the ranks of 29 Congresspeople (only one so far has been outed) who requested pardons in the last days of the Trump administration. 

Who kept the pardon list?  Mr. Giuliani, who was President Trump's personal attorney at the time?  Jared Kushner, the president's son-in-law and backstage gatekeeper?  Or someone else inside the White House?  Whoever it is, it deserves a bit of verse.  This one's to the tune of "I've Got a Little List" from Gilbert & Sullivan's operetta "The Mikado":

 

If someday it should happen that a pardon must be sold,

I‘ve got a little list, I’ve got a little list

Of conspirators and plotters whose misfortunes are now told,

And who all want on my list, who all want on my list.

There’s the crazy law professor who thinks Pence can pick the Prez,

And the Congressmen and women who repeat what Eastman says,

“Ordinary tourists” who invade the House’s floor,

The folks who take them up and down the stairs the day before,

Promoters of the Big Lie – well, I’m sure you get the gist,

They all want on my list, they all want on my list.

 

Footnote for fans of Professor Eastman:  His Wikipedia entry ends with this intriguing note:

Other

On January 7, 2021, Eastman edited this Wikipedia article to portray his post-election role in a more favorable light. His editing was reverted due to conflict-of-interest rules of Wikipedia, and on January 9 he appealed on the article's talk page, where some changes were approved but others were denied.^[118]

An old Boomer's "delete" button

Last week former president Donald Trump denied the claim of reporter Maggie Haberman that he had flushed documents down a White House toilet.  Ms. Haberman makes the claim in her forthcoming book, Confidence Man, according to a report from Axios.

Mr. Trump is famous for not using e-mail and avoiding computers, both of which have more modern means of deleting unwanted information - hence the thought that inspired today's caption.

Women, children, and CPAs first!

As the S.S. Trumptanic takes on water, the former president's outside accountants have headed to the lifeboats.