Judge Arthur F. Engoron’s decision— ordering President Trump and his two sons to pay more than $450 million and denying them the right to conduct business in New York for several years—is unconstitutional on so many levels. And, to make matters worse, to appeal Engoron’s decision, Trump must deposit the $450 million in escrow or post a bond within 30-days?!
Where rights that are secured by the Constitution are involved, there can be no legislation which would abrogate such rights.[1]
“All laws, rules and practices which are repugnant to the Constitution are null and void.”[2] Simply put, the State cannot diminish or circumvent the rights of its citizens through legislation, which is what the State of New York did, aided and abetted by politically motivated Democrats, Judge Arthur F. Engoron and Attorney General Letitia James.
First, Executive Law Section 63(12), which redefines or replaces “common law fraud” in the State of New York, is ambiguous and unclear. The law does not provide clear standards for law enforcement officials to apply. Accordingly, if anyone doing business in New York gets on the wrong side of a well-connected official, such as Attorney General Lititia James, or one of her friends or neighbors, this statute could easily be weaponized against any of their opponents. Accordingly, this law should be struck down as unconstitutional under the “void for vagueness doctrine,” as it violates the Due Process Clauses of the Fifth and Fourteenth Amendments.
The requirement to deposit $450 million in escrow or post a bond within 30-days to appeal this unconscionable decision is also a violation of President Trump’s right to Due Process under the Fifth and Fourteenth Amendments.
Furthermore, under common law fraud, there are five key elements that must be proven. The fifth and most important in Engoron’s decision, there must be damages, which was conveniently ignored. In Trump’s case, every bank, lender, and insurance company were timely paid; and testified that they enjoyed doing business with Trump and would continue to do so. THERE WERE NO DAMAGES.
Under the general principle of fraud, the plaintiff must have suffered actual damages because of their reliance on any false statements. No one relied on Trump’s financial statements, i.e., they did their own due diligence, which is standard business practice and required under banking regulations. Furthermore, Trump’s financial statements were based upon estimates and therefore, highly qualified, strongly suggesting that the banks and lenders do their own due diligence.
The only plaintiff in this case was Attorney General Lititia James. Neither she nor the City and State of New York loaned the Trump Organization any money. In fact, New York benefited significantly from the Trump Organization’s business activity. There were NO victims! This case should have never seen the light-of-day.
The Engoron decision is a violation of the Eighth Amendment, “Excessive bail . . . nor excessive fines” “shall not” be imposed “nor cruel and unusual punishments inflicted.”
Regardless of Judge Engoron’s distinction between “cases ‘at common law,’ so-called ‘legal’ cases,” and “equitable relief,” under the present circumstances, I believe a strong argument exists that this decision also violates the Seventh Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”
President Trump’s “due process” rights, under the Fifth and Fourteenth Amendments have been violated, along with the Ninth Amendment, his “right to be left alone” and to pursue happiness or property, without government’s arbitrary interference.
Using subpoenas, rather than warrants, to obtain Trump’s private papers and to convict him of a crime and to take his property is a violation of the Fourth and Fifth Amendments.
Furthermore, Attorney General Letitia James campaigned for her office when Trump was President, stating, "I'm running for attorney general because I will never be afraid to challenge this illegitimate president." Her campaign slogan was, and I paraphrase, I will get Trump! So, she found an obscure New York Statute enacted over six decades ago, which appears to have NEVER been used where there were NO victims. In Trump’s case, the banks and other lenders were paid back timely, and in full, with interest, and more than willing to do business with him and his organization.
According to Judge Engoron, the Trump Organization “submitted blatantly false financial data . . . resulting in fraudulent financial statements.” The banks and lenders did not rely on Trump’s financial statements, which were highly qualified, and they did their own due diligence before making the loans. There were NO victims contemplated here under Executive Law Section 63(12). As a result of this unconscionable application of the law by AG Letitia James and Judge Arthur F. Engoron, the real victims are President Trump, his family, several former employees, and the employees of the Trump Organization in New York.
The first constitutional violation of President Trump’s Fifth Amendment right—the right not to be a witness against himself—occurred in 2020 when the Office of the Attorney General of New York (OAG) “commenced a special proceeding to enforce a series of subpoenas against” the Trump Organization. Judge Engoron “presided over that proceeding and issued several orders compelling . . . compliance with OAG’s subpoenas.”
In Boyd v. U.S., 116 U.S. 616 (1886), the United States Supreme Court discussed the Writs of Assistance issued prior to the American Revolution and referred to Entick v. Carrington “as one of the landmarks of English liberty.” Justice Bradley concluded, “that a compulsory production of a man’s private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution. . . [And] . . . any forcible and compulsory extortion of a man’s own testimony or of his private papers to be evidence to convict him of crime or to forfeit his goods is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.”
A very important point, which has been ignored by subsequent Supreme Court decisions, is this strong relationship between the Fourth and Fifth Amendments. The Fourth Amendment allows a warrant to be issued “upon probable cause” but, if the private papers (e.g., books and records, invoices, cell phone data, etc.) can “be used as evidence to convict [for a] crime or to forfeit . . . [property,]” then a warrant may NOT be properly issued for private papers, if the papers, physical or electronic, would be used as evidence to convict a person of a crime or cause a person to forfeit his or her property.
Therefore, if a warrant is issued for private papers, those papers should NOT be able to be used to convict the owner of those papers for a crime or to take his or her property, since that would violate the right not to be a witness against him or herself under the Fifth Amendment.
With respect to President Trump, AG Letitia James, and Judge Engoron are using subpoenas to procure his private papers to convict him of a crime and to forfeit his property in violation of his Fifth Amendment right not to be a witness against himself.
In addition to the constitutional challenges mentioned above, many of the laws and regulations imposed upon the citizens and residents of New York are violations of the principles of individual freedom described in the Declaration of Independence, which were carried forward into the U.S. Constitution. In 1798 (Calder v. Bull), Justice Samuel Chase—a Founding Father and Signor of the Declaration of Independence—explained:
“The people of the United States erected their constitutions or forms of government, to establish justice, . . . to secure the blessings of liberty, and to protect their persons and property from violence. . . The nature and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments. [There] are acts which the federal, or state legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power. [An] act of the legislature (for I cannot call it a law), contrary to the great first principles in the social compact, cannot be considered a rightful exercise of legislative authority. [A] law that punishes a citizen for an innocent [action;] a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A and gives it to B; it is against all reason and justice, for a people to entrust a legislature with such powers; and therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. [To] maintain that our federal, or state legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be political heresy, altogether inadmissible in our free republican governments.”
Article IV, Section 4 of the U.S. Constitution proclaims, “The United States shall guarantee to every State in this Union a Republican Form of Government. . .” defined as follows:
A Republican Government is one “whose citizens shall be entitled to all the privileges and immunities of other citizens; where no law shall be made prohibiting the free exercise of religion; where the right of the people to keep and bear arms shall not be infringed; where the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and where no person shall be deprived of life, liberty, or property without due process of law.”
The Supreme Court needs to step in and STOP the weaponization of the legal system against political opponents. In addition, the Court MUST start the process of restoring individual freedom and private property rights, thereby taking away some of the excessive power they previously have granted to federal and State governments.
Dum Spiro Spero—While I breathe, I hope.
Slainte mhath,
Robert (Mike) G. Beard Jr., C.P.A., C.G.M.A., J.D., LL.M.
[1] Miranda v. Arizona, 384 US 436, 491
[2] Marbury v. Madison, 5th US (2 Cranch) 137, 174, 176 (1803)