Is the New York fraud suit against Trump biased?

What is sauce for the goose is supposed to be sauce for the gander. But apparently not in the world of former President Trump.

In 2018, Letitia James, a Democrat, won election for attorney general in New York, becoming the first Black woman elected to statewide office, then won reelection in November 2022. In September of that year, James initiated a lawsuit alleging that Trump and his children had, over 20 years, enriched themselves through “numerous acts of fraud and misrepresentations.” Basically, the lawsuit accused Trump of “grossly” inflating his net worth by billions of dollars and cheating lenders and others with false and misleading financial statements.

James has never liked Trump. In the months before her election, she called Trump an “illegitimate president” and vowed to “use every area of the law” to investigate his businesses and his family. On the night she was elected, she called Trump a “con man,” and pledged to shine “a bright light into every dark corner of his real estate dealings.”

The attorney general’s investigation began in March 2019, after Trump’s former lawyer, Michael Cohen, testified before Congress that Trump’s annual financial statements inflated the values of his assets — including his buildings, his golf courses, his posh estate at Mar-a-Lago in Palm Beach and his penthouse at Trump Tower — by billions of dollars in financial statements that were used to obtain favorable terms for loans and insurance coverage, all the while deflating the value of some of the same assets to reduce real estate taxes.

Don’t be the corrupt police chief in “Casablanca” and be shocked that such things go on in the smarmy world of real estate operators. It probably happens every day — but not to the degree that Trump did it.

The James lawsuit, filed in State Supreme Court in Manhattan, seeks a money judgment and prohibition on any of the Trumps operating a company in the state of New York.

New York Executive Law Section 63(12) grants extraordinarily broad powers to the attorney general to go after such misconduct. The law was passed at the urging of one of James’s Republican predecessors, the iconic former Sen. Jacob Javits (R-N.Y.), when he was attorney general. Under the measure, there is no requirement to prove that Trump’s actions damaged anyone — in this case, the banks that lent him money and the insurance companies that covered his property. There’s no requirement to prove that the fraud was intentional, although Trump, a seasoned real estate operator, clearly knew what he was doing.

And the potency of the rule, the fairness of which has been questioned, is that the judge “in an appropriate case” has wide discretion to impose the kind of draconian remedy that he did: restitution and damages, as well as canceling Trump’s licenses to operate in New York State and appointing a receiver to oversee the dissolution of his properties. This leaves open the issue of damages, which may run to $250 million or more.

Trump denied wrongdoing and has, of course, gone on the counterattack, calling the suit a politically motivated “witch hunt” by an attorney general whom he called “racist” and a “deranged lunatic.”

Not sparing his vitriol for the judge presiding over the case, Trump said, “His name is Arthur Engoron and he is a vicious, biased, and mean ‘rubber stamp’ for the Communist takeover of the great and prosperous American company that I have built over a long period of years.” Not a smooth move. It is Engoron who must determine the outcome after trial, as Trump waived a jury.

David Schoen, Trump’s lawyer in his second impeachment trial, denounced the James statements. “I think they’re very troubling comments. We can’t have people targeting particular citizens when they’re running for office, especially when there’s been no investigation and certainly no finding yet at that time of any culpability. I think they’re very troubling.”

But that is exactly what Trump did with the Muslim ban he issued shortly after taking office.

On Dec. 7, 2015, Trump issued a call “for a total and complete shutdown of Muslims entering the United States.” That statement remained on his campaign website until May 2017, several months into his presidency. Such a sweeping ban implicated the First Amendment’s establishment clause prohibiting the government from preferring one religion over another.

On Jan. 27, 2017, one week after taking office, Trump signed Executive Order No. 13769, entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” As he signed it, Trump read the title, looked up, and said “We all know what that means.” His key advisers candidly drew the connection between the order and the “Muslim ban” that the Trump had pledged to implement if elected. Rudy Giuliani said that “when he [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”

Later on, the Supreme Court in a 5-4 decision approved the third watered-down version of Trump’s ban, in the interests of national security. The ban affected travelers from eight countries, six of them with Muslim-majority populations. Writing for the majority, Chief Justice Roberts dismissed claims of preexisting antipathy toward Muslims, stating that the ban “is squarely within the scope of Presidential authority” and noting that its text does not mention religion. “As a result,” the court said, “we may consider … evidence [of animus], but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”

Applying the Supreme Court’s reasoning to the New York case, James’s alleged animus against Trump may be disregarded if the case has independent justification. Here, Justice Engoron has already found that Trump engaged in persistent fraud and illegality in the transaction of business. That would be justification enough.

Is Attorney General James biased against Trump? As my great boss in the U.S. Attorney’s office, the legendary prosecutor Robert M. Morgenthau, once said, “A man is not immune from prosecution just because a United States attorney happens not to like him.”

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the acclaimed public television talk show and podcast Conversations with Jim Zirin.