This is one more reason the verdict shouldn’t be permitted to stand, writes David Schoen.
There are so many issues attending the fraud verdict in the Trump case that will require reversing the judgment that it is hard to identify the most compelling (“New Doubts About Trump’s Fraud Verdict,” Review & Outlook, Sept. 30). As you point out, the appellate judges identified some of the threshold issues, including whether Executive Law 63(12) ever was intended to be used in such a circumstance with no victim, no detrimental reliance, happy lenders and no loss—all hallmarks of what we traditionally think of as requirements for fraud.
But there is an important, constitutionally significant issue arising from this case that should be discussed. The verdict and the decision to assess hundreds of millions of dollars in damages against former President Donald Trump was made by a single anti-Trump judge after a trial filled with peculiarities.
There was no jury. In 2009 a colleague of Judge Arthur Engoron held in People v. First Am. Corp. that there is no right to a jury trial under the executive law New York Attorney General Letitia James used to sue Mr. Trump and his family. The decision was based on the notion that damages are merely “incidental” in an action under Executive Law 63(12). It is focused more on stopping a business practice—equitable relief left to a judge, rather than legal relief for a jury.
But in 2021 a federal judge, presiding over a trial in federal court down the street from Judge Engoron’s courtroom, came to the opposite conclusion. Judge Louis Stanton held in FTC v. Quincy Bioscience Holding Co. that there is a constitutional right to a jury trial under Executive Law 63(12) under the Seventh Amendment to the U.S. Constitution because damages can be assessed.
The same rationale that Judge Stanton applied should be applied with even greater force in the Trump case in considering the right to a jury trial under Article 1, Section 2 of the New York Constitution. In no way, shape or form can the award of hundreds of millions of damages in the Trump case be considered “incidental.”
The Trump family should have had the right to a jury trial in the case. This is one more reason the verdict shouldn’t be permitted to stand.
