TThe lawsuit filed against Donald Trump this week by New York Attorney General Letitia James could be the case that finally impeaches the former president. This is because of four important words: preponderance of the evidence.
Trump is under investigation for a variety of alleged wrongdoing — election fraud in Georgia, financial fraud in Manhattan, his role in the January 6 attack in Washington. But these investigations are all criminal cases, with the burden of proving guilt beyond a reasonable doubt. In the case filed Wednesday, the standard used in civil suits is lower, requiring simply proof that the defendant broke the law rather than not. And for that reason, this lawsuit may be the one that finally holds Trump accountable for wrongdoing.
The fact that the action is civil in nature does not reduce the amount of its claims. The complaint alleges that Trump, three of his children, the Trump Organization and others engaged in a decade-long financial fraud. According to the complaint, Trump inflated the value of his assets by billions of dollars to obtain fraudulent loans, insurance coverage and tax breaks. The 220-page complaint details fraudulent appraisals, according to James. Among the allegedly inflated assets included in financial statements, Trump valued his Mar-a-Lago club in Florida at $739 million and did not disclose restrictions preventing it from being sold for living. In fact, James claims it’s worth $75 million. The complaint is replete with descriptions of other properties whose values were grossly overstated.
Proving these falsehoods by a preponderance of the evidence is even easier if the case is heavily documented. Lies can be proven by showing inconsistent statements about asset values between documents. In violent crimes, evidence requires witnesses who can testify to what they observed. But witnesses are questioned, which can impair their ability to observe or recall what they saw. Not so with documents. Documents don’t lie and documents don’t forget.
In addition to the lower standard of proof in a civil case, this case has another advantage over criminal charges. If a witness exercises his Fifth Amendment privilege against self-incrimination, it may be admitted into evidence in a civil trial. In that case, Trump and his son, Eric Trump, allegedly repeatedly exercised their Fifth Amendment rights during their swearing-in. In a criminal case, the jury is not told that the person refused to answer questions on the grounds that his answer might incriminate him. Disclosure of this fact to the jury is itself a violation of the Fifth Amendment. But in a civil case, these rules do not apply. The jury could be told that when asked to explain what appeared to be inflated assets, Trump took the fifth spot. Jurors are further told in the jury instructions that they can draw a so-called adverse inference from her silence, meaning that an answer would have been detrimental to her case.
James may have opted for civil suits because he lacks the authority as attorney general to bring criminal charges of this nature. However, he has referred the case to the US Attorney’s Office for the Southern District of New York and the Internal Revenue Service for possible criminal investigation. Nothing in his civil case would prevent them from filing criminal charges.
Although the lawsuit will not result in jail time, James is seeking to recover $250 million that he claims was ill-gotten gains. It also wants to ban 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-based corporation.
And most importantly, a judgment against Trump would expose his blatant lies and hold him accountable for wrongdoing. In a country that values the rule of law—the notion that no one is above the law—it has been frustrating for many to see Donald Trump’s justice seem so elusive.
A conviction against Trump would not make him a criminal or send him to prison, but it would label him what he appears to so many to be – a fraud.
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