Arthur Engoron, the New York Supreme Court judge in the real estate case brought against Donald Trump by the state attorney general, has fined Trump and members of his family $464 million. This raises the question of whether the fine – which does not reflect damages actually done – is "excessive" under the Eighth Amendment of the US Constitution, which reads as follows: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
The court also ordered Trump to pay $111,ooo per day in interest, and that he "be barred from serving as an officer or director of a New York corporation or other legal entities in the state for three years, and cannot apply for loans from any financial institution registered in the state for three years..."
In addition, the court fined his two sons, Donald Trump Jr. and Eric Trump, $4 million each, and banned them from serving as executives at the Trump Organization for two years.
Although the Eighth Amendment is not explicitly limited to criminal cases, its three subjects— bail, fines and punishments — all relate generally to criminal cases. Trump's fine was imposed in what was denominated a civil case. But it was not a traditional civil case between private parties, because no private parties were allegedly damaged by Trump. It was a case brought by the State of New York, which would receive the fine. Moreover, the fine was intended to deter the kind of conduct of which Trump was accused.
These factors make the fine seem closer to the usual attributes of a public criminal case than of a private civil case. A functional analysis of the fine in this case could well conclude that it is really criminal in nature and should be covered by the Eighth Amendment.
Trump's lawyers will certainly argue at this point, though they are unlikely to succeed on the initial appeal. They will then almost certainly seek certiorari, a review by the Supreme Court of the United States, by alleging a violation of the Eighth Amendment. If the Supreme Court were to grant review, it would have to consider two issues: the first is whether this state-imposed fine and others like it are covered by the Eighth Amendment; if so, the second issue would be whether the fine of $464 million is excessive.
The answer to the second question is easier than the first. The fine is clearly excessive by any reasonable standard. It does not reflect actual damages inflicted on others by Trump's alleged overstatement of the value of his assets. Nor does it reasonably reflect profits Trump actually made by allegedly overstating these assets.
As to the first question, there were not even any allegations of damage caused to the giant banking institutions from which Trump borrowed. They lost no money, claimed no losses and were anxious to do business with the real estate developer who paid back his loans with interest.
Nor can it reasonably be concluded that Trump profited by his alleged over-valuations, by receiving a lower rate of interest. Rates of interest in real estate loans are negotiated based largely on supply and demand. The banks were eager for Trump's business, and had they tried to raise the interest rate, he could easily have gone elsewhere and negotiated the rate he actually received. The fine imposed in this case was clearly punitive in intent, in effect and in reality. This leads to the more fundamental constitutional issue of whether this excessive fine is prohibited by the Eighth Amendment.
States have a long history of seeking to evade the strictures of the Eighth Amendment by designating sanctions as civil rather than criminal. But courts sometimes recognize that when it walks like a duck and quacks like a duck, it is a duck. This particular duck has all the elements of a criminal fine, imposed by the state, as punishment, in order to deter future misconduct.
The civil case against Trump was brought by New York Attorney General Letitia James, a prosecutor who campaigned for her elected office on a pledge to get Trump. By bringing a civil case rather than a criminal prosecution, James denied Trump a jury trial, which he could not have gotten on this kind of case; a requirement of proof beyond a reasonable doubt, and other constitutional safeguards. Now she seeks to deny him the protection of the Eighth Amendment's prohibition against excessive fines.
The courts should focus on the reality of this fine and find it unconstitutionally excessive.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of War Against the Jews: How to End Hamas Barbarism. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow" podcast.
Steve