Yes, there is a Trump case that lives on

In Part 2 of our look at the cases against Trump, one case indisputably lives on: the NY AG's $454 million civil fraud case. Why? And how do we stop Trump from burying it?

We start the week by continuing our look into the state of play in the cases against Donald Trump (you can read the first part here).

As much as we’ve been mourning the death of these cases — and as much as I know how exhausted we all are by any further attempts at optimism right now — there really, truly, actually is a case against Trump that is very much surviving:

2 - The New York AG’s $454 million civil fraud case against Trump lives on, despite Trump’s attempts to lump it in with the criminal cases against him, precisely because it is a civil case — and even sitting presidents are NOT immune from civil suits.

The New York Attorney General’s Office won a smashing victory earlier this year, winning a $454 million judgment in its civil case against the Trump Organization and Donald Trump Sr., Donald Trump Jr., and Eric Trump, for fraudulently overvaluing the values of their real estate properties.

The prosecutor versus the felon — and serial fraudster. New York AG Letitia James’s $454 million case against Trump lives on, and don’t let anyone tell you otherwise.

After the AG’s victory, Trump appealed, and the case now sits with the intermediate appellate court for Manhattan, the Appellate Division, First Department. They will potentially issue a decision in the next six months, after which the case will almost certainly go to the New York Court of Appeals, the highest court in New York State.¹

Trump has repeatedly inserted this case into the list of cases and prosecutors (New York AG Letitia James) he rants against — usually right in the middle of the list — and this has been very purposeful. He wants the media and the public to think of this case as part of a matched set with the four criminal cases against Trump.

But it isn’t. It’s a civil case — and that makes all the difference here.

Whereas we discussed the other day how the tainted, misguided DOJ memos are driving the dismissals of the criminal cases — using the DOJ conclusion that sitting presidents cannot be criminally prosecuted — there is no authority whatsoever regarding presidential immunity from civil cases.

Quite the contrary: there is Supreme Court precedent directly on point.

Remember this case and be ready to retort with it every time Trump or his mockingbirds in the media spout their disinfo on this point.

The case was Clinton v. Jones — it was the 1997 case in which SCOTUS ruled unanimously that a sitting president can face a civil suit regarding unofficial conduct unrelated to the president’s execution of his duties. Again, this was a 9-0 decision. Even Clarence Thomas co-signed this. So did the arch-conservative Antonin Scalia.

Here in the New York AG’s civil fraud case, the conduct in question was unquestionably unofficial — totally private and wholly unrelated to the office of the presidency. Moreover, much of the fraud occurred before Trump’s first term, from 2011 to 2017.

Under anything resembling a fair application of Clinton v. Jones, Donald Trump will lose any attempt to say that he’s immune from civil liability in the New York AG case. And this must be our reply to his attempts to state otherwise, implicitly or explicitly.

Interestingly, Trump and his lawyers seem to know they have a losing hand here. When they wrote a letter to James’s office recently (which they then leaked to Fox News), asking them to dismiss the case, they did not base this on presidential immunity but on a smarmy plea to kill the case “for the greater good of the country.”

This is the New Big Lie: Trump and his cronies claiming that all of the cases against him were meritless all along and were mere partisan attacks that should now be brought to an end in the name of national unity —notwithstanding the mountains of evidence of crimes and fraud, the hundreds of witnesses, the grand jury indictments, and the trial jury finding of 34 felonies.

No, none of that matters, apparently. Trump now claims that because the cases are being dismissed, he must have been innocent all along. But that’s not how this works. The cases are not being dismissed on the merits. He is not innocent. He is not exonerated. He only gets off because of his get-out-of-jail-free card from the DOJ — a card DOJ created to protect Richard Nixon and Bill Clinton, and now Donald Trump gets to use it too.

Yet this is all very telling. If Trump actually had a legal argument here, they would make it. Instead, their letter to James is basically a legalese version of “pretty pretty please with sugar on top.” It is the kind of argument lawyers make when they don’t actually have any real arguments to make.

This is not to say that Trump won’t somehow come up with a different argument at some point — and I would imagine that they might at least try to see if they can get Clinton v. Jones overturned or at least amended enough that the case against Trump could be stopped.

And yes, it’s possible that SCOTUS could ultimately hear Trump’s case and overrule Clinton v. Jones. But until then, it is our job to state the clear fact that Trump can absolutely continue to face this civil suit — and, for that matter, the E. Jean Carroll suits, which are also now on appeal. And any other suits that anyone brings against him now, unrelated to his official duties.

---

Next, we’ll look at the third key takeaway on the Trump cases — namely, that even the dismissed Trump cases can and should still continue with or without him.

---

1. There is the entirely different question of what will happen to this case once the appellate courts are through with it, but that’s a topic we’ll save for another time soon.