Oh, the irony. Supreme Court Justice Ruth Bader Ginsburg, who died in 2020, wrote the majority opinion in a 2019 case that likely will help former President Donald Trump’s appeal of the $355 million civil fraud judgment against him.
Ginsburg, of course, was no fan of Trump.
You may recall the justice telling The New York Times in July 2016 during the presidential race, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”
“For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that,” Ginsburg said.
Her comments grew even harsher in an interview with CNN that same month when she called Trump a “faker.”
“He has no consistency about him,” the justice said. “He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
After receiving much criticism for wading into the presidential race, Ginsburg released a statement saying her remarks were “ill-advised,” according to NPR.
“Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect,” she said.
For his part, Trump stated his intention while president to replace Ginsburg with Judge Amy Coney Barrett if given the chance, according to Axios. And he did so in October 2020 following the justice’s death a month earlier.
Should Trump win his appeal?
A little over a year before, in February 2019, Ginsburg wrote the majority opinion in Timbs v. Indiana, which looks to play prominently in Trump’s appeal of New York Judge Arthur Engoron’s ruling against him in a civil fraud case.
Engoron concluded that the Trump Organization inflated the value of its properties in order to get better loan terms.
On Feb. 16, the judge imposed a fine of $355 million plus $100 million in interest, which will continue to accrue at approximately $100,000 each day, CBS News reported.
Last week, Trump’s attorneys filed a request to stay enforcement of the judgment for 30 days as they prepared their client’s appeal, but Engoron denied the request.
On Monday, the former president’s lawyers filed his notice of appeal.
At the heart of that appeal no doubt will be an argument that Engoron’s ruling violates the Eighth Amendment, which prohibits excessive fines from being imposed.
Trump’s legal team argued during the trial that all the loans from banks were paid on time, in full, so there were no victims. The banks made millions of dollars by loaning to his company and want to do more business with the Trump Organization, they argued.
But New York Attorney General Letitia James’ office built its case on New York Executive Law 63(12), which does not require damages to be shown and grants the court the power to impose whatever penalties the judge deems proper.
In September, Engoron ordered the dissolution of the Trump Organization, but a New York appeals court temporarily stayed the decision in early October to give Trump the chance to appeal the ruling.
In January, The Associated Press reported that after analyzing 70 years of civil fraud cases under Executive Law 63(12) — nearly 150 cases in all — its researchers concluded that Trump’s case would be the “only big business found that was threatened with a shutdown without a showing of obvious victims and major losses.”
Engoron ultimately did not include dissolution in his final ruling, but he did impose a massive fine and bar Trump from serving as an officer or director of the Trump Organization for three years. His sons Donald Trump Jr. and Eric Trump were prohibited from doing so for two years.
At a Fox News town hall last week while discussing judgment against him, Trump read the text of the Eighth Amendment, which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Legal experts have pointed to the Eighth Amendment as a basis for Trump’s appeal.
Mark Levin, who served as chief of staff to Attorney General Edwin Meese during the Reagan administration, posted on X, “The key to dealing with New York’s attempt to legalize the stealing of President Trump’s property is the 8th amendment and the Supreme Court’s most recent ruling.”
The key to dealing with New York’s attempt to legalize the stealing of President Trump’s property is the 8th amendment and the Supreme Court’s most recent rulinghttps://t.co/Q8XETyOHAz
— Mark R. Levin (@marklevinshow) February 21, 2024
The Supreme Court held 9-0 in the Timbs case that the Eighth Amendment is applicable to the states.
The court ruled against Indiana for assessing a fine that was “grossly disproportionate” to the gravity of the offense. The state was seeking to confiscate defendant Tyson Timbs’ $42,000 Land Rover. The value was more than four times the maximum $10,000 fine that he was liable for in a criminal case that involved controlled substances and conspiracy to commit theft.
“The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause,” the justices found.
“The prohibition embodied in the Excessive Fines Clause carries forward protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day,” Ginsburg argued in the case. “Protection against excessive fines has been a constant shield throughout Anglo-American history for good reason: Such fines undermine other liberties.”
“They can be used, e.g., to retaliate against or chill the speech of political enemies,” she observed.
Such certainly seems to be the case here.
James campaigned for office in 2018 promising that she would “get Trump,” calling him an “illegitimate president.”
Levin contended on his Fox News program “Life, Liberty & Levin” on Sunday night, “Her statements are now evidence of her intent and motivation in any appeal and central to the violations of the Eighth Amendment.”
Engoron’s $355 million ruling came in just shy of the $370 million James had sought.
The language the judge used in his decision also appeared to reveal an animus toward Trump.
“Overall, Donald Trump rarely responded to the questions asked, and he frequently interjected long, irrelevant speeches on issues far beyond the scope of the trial. His refusal to answer the questions directly, or in some cases, at all, severely compromised his credibility,” Engoron said.
Further, the judge concluded that the former president and his fellow co-defendants’ “complete lack of contrition and remorse borders on pathological.”
George Washington University Law School professor Jonathan Turley wrote in a column for The Hill concerning Engoron’s fine, “The size of the damages is grotesque and should shock the conscience of any judge on appeal. Even if the Democrat-appointed judges on the New York Court of Appeals were to ignore the obvious inequity and unfairness, the United States Supreme Court could intervene.”
It would be ironic indeed if Trump were to win on appeal thanks to an opinion Ruth Bader Ginsburg wrote while he was president.
Such an outcome almost feels biblical, with the divine hand of providential justice at work.
