Will Thomas, assistant professor of business law
Expert Q&A: As the presidential primary season heats up, so too do various civil and criminal cases and myriad charges against former President Donald Trump. Will Thomas, assistant professor of business law whose research explores the foundations of corporate and white-collar crime, offers insights on what’s been happening and where things could go from here as the election looms.
What are the legal issues facing Trump?
There are a lot. Start with criminal law. Trump is still facing four indictments—state charges in New York and Georgia, federal charges in Washington, D.C., and Florida— all of which concern alleged crimes he’s accused of committing in trying to advance his political career. All of these cases are still in the pre-trial phase. Just this week, the U.S. Court of Appeals for the D.C. Circuit released a blockbuster opinion denying Trump’s claims of blanket immunity against criminal charges for his role in the 2021 insurrection.
Next, Trump’s businesses are facing two serious civil actions in New York: a defamation suit brought by E. Jean Carroll and a fraud suit brought by the state’s attorney general. Lastly, Trump’s presidential campaign is battling with Colorado, Maine and several other states about whether he is allowed to appear on the ballot for this November’s presidential election.
What comes next?
The civil and eligibility cases are moving quickly: A New York jury just decided against Trump in his defamation case. This is Carroll’s second defamation suit against Trump in as many years; she won her first case, after which Trump immediately repeated the same statements that were found to be defamatory in the first case.
This background explains the massive judgment imposed—the jury found Trump should pay $83 million in damages to her, $65 million of which are punitive damages for the repeated defamation.
And $83 million in damages might just be the start of a rough 2024 for Donald Trump. Trial wrapped earlier in January for his New York fraud trial, where the state’s attorney general seeks to disgorge $370 million from Trump and his businesses, and ban Trump from ever again participating in the New York real estate business.
The court initially aimed to release its decision in January, but now expects to rule on the case by mid-February. And the Trump campaign is headed to the U.S. Supreme Court this month to argue that Trump remains constitutionally eligible to run for president, notwithstanding his involvement in the Jan. 6 insurrection.
What should we keep an eye out for?
Trump’s fraud trial is the next big case to watch. The point of last month’s trial was to figure out whether criminal conduct occurred, and whether and to what extent Trump and his business would have to disgorge past profits.
Signaling the difficulties for Trump’s defense team, the trial court had already granted partial summary judgment to the attorney general. Specifically, the court found the Trump Organization and several of its executives—including Trump himself and his two sons—violated a state law that prohibits New York business from engaging in fraud or deception.
Perhaps most controversially, the court also declared Trump’s businesses must have their legal charters revoked—a decision that would have potentially seismic consequences for Trump’s business empire if it were upheld.
With trial completed, there are two things to keep an eye out for here. First, will the trial court change its mind about revoking the Trump Organization’s charter? Buried in its recent brief, the attorney general now recommends a court-appointed monitor oversee the organization, but the business otherwise be allowed to continue. This outcome may not be much comfort to the Trump family—the attorney general is also seeking to ban Trump and his sons from participating themselves in the New York real estate sector—but it would mean the organization wouldn’t be forced to close down anytime soon.
What’s going to happen here? Given that it is the attorney general making this recommendation, I won’t be surprised if the court decides to take this approach and revise its original decision to revoke Trump’s business charters.
Second, how much is Trump set to lose? The attorney general is asking the court to impose a staggering disgorgement penalty, which Trump personally may have to pay. Trump’s defense team spent much of the trial trying to convince the court that, even if he did lie about his finances, he didn’t harm anyone. Arguing that Trump’s lenders would have financed his deals no matter what, and noting that none of his loans went unpaid, Trump is arguing, essentially, there weren’t any victims and so there shouldn’t be any damages.
The problem for Trump: New York allows the court to impose disgorgement, which is different from damages. In a nutshell, disgorgement refers to ill-gotten gains; it’s about how much money you were able to get by committing fraud, rather than how much money you defrauded from your victims. Disgorgement, then, can often be a lot bigger than damages.
For example, if Trump secured a business advantage by lying about his personal wealth—say, in this case, by getting a lower interest rate than a bank would otherwise have given him—then it doesn’t matter whether or not the bank relied on his misrepresentations, or would have given him a loan anyway. Put another way, whether there were victims of the Trump Organization mattered for some of the issues at trial, but it probably doesn’t apply directly to calculating the amount that Trump might end up being forced to pay.
What does this all mean for Trump’s political future?
That remains to be seen. Obviously, disqualification from state ballots could fatally injure Trump’s presidential campaign. It’s pretty hard but not impossible to run for major office when you aren’t on the ballot. A criminal conviction might be just as bad; I cannot begin to unpack the legal and constitutional headaches arising from having an incarcerated candidate, much less an imprisoned president.
On the other hand, Trump’s core electoral support has proved remarkably durable over the years. So, will the monetary damages harm his ability to run? Will the impact on his business reputation cause his support to wane? Hopefully we have more clarity in the coming weeks and months as the presidential primary moves forward.
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