A judgment just for Donald Trump

Lady Justice famously wears a blindfold. The implication of the symbolic representation is clear. She is blind to the identities of the people and parties standing before her. We all intuit that justice would likely not prevail if laws were directed to specific individuals or if cases were decided based on popularity or power. One of the great advances wrought by the Magna Carta is the idea that no one, not even a king, is above the law. There is a strong argument that New York’s case against former President Trump (in which he was charged with inflating real estate values) violates the requirement that justice be blind.

Donald Trump has not been a stranger to litigation during his long and illustrious career. But there is no doubt that his recent troubles have been magnified by the fact of his presidency. In other words, he became a target simply by virtue of winning high office and therefore gaining powerful enemies. There is little question that Trump’s defiant manner has added heat to the opposition he often faces.

It is explicitly part of our tradition and of our view of justice itself, that the law is general in its application. An important way to think of that is that if person A and person B commit the same offense under the same circumstances, they will receive roughly the same sentence. One of the great complaints of criminal punishments in the 1980s and 1990s was that similar crimes—the possession of crack and cocaine—yielded different penalties. The argument has been that one was a black crime, while the other was more often committed by whites. The logic has force because it offends our sense of equal justice.

The state of New York is guilty of delivering a judgment that appears to be created just for Donald Trump. That is to say that he is a unique figure receiving a unique judgment sought by an elected official. Justice tailored to one is almost certainly not just. No similar case can be identified in the history of the statute used to convict Trump.

Trump has been convicted of inflating the value of his assets in order to gain business loans. In a reasonable version of this story, it would have to be the case that Trump defrauded and harmed creditors by lying about his assets and then failing to pay back loans. Those damaged would cry out for justice.

However, what I’ve just described is not what happened. Donald Trump presented his application for loans with a valuation of his assets that would be used to secure them. He dealt with sophisticated professionals whose livelihood depended on making good decisions about the loans they approved. The banks happily took his business. Trump repaid the money on time. There were no damages. To the contrary, both Trump and the organizations that loaned him money benefitted.

New York’s Attorney General Letitia James ran for office promising to punish Donald Trump. It is likely that she was elected on that basis. The new attorney general managed to use a statute in a way it has never been used before, which is to seek massive damages for a commercial transaction in which no one was harmed. The judge then awarded nearly half a billion dollars in damages, a number that is far beyond the capacity of the Trump organization or Donald Trump to put together in a relatively short period. While it seems likely the damages could be radically reduced by an appellate court, New York’s law has operated so as to require Trump to do the impossible or face the unraveling of his life’s work.

The question that must be asked is whether there is any other individual in the United States who would be treated this way in court. While many don’t care for Donald Trump, what has happened in New York is bigger than one man. The state has sent an intimidating message. If you do business in the commercial capital of the world and you anger the wrong people, you will be slapped down with extreme and intimidating force. This verdict was a message to Donald Trump, to Elon Musk, to Bill Ackman, and to any other wealthy individual who strays too far from the political line. In this case, justice isn’t blind. It is making a specific threat. Nice company you’ve got there, it would be shame to see something happen to it.

On March 25, an appeals court injected some common sense into the proceedings by reducing the required bond from nearly half a billion dollars by 60 percent to a more manageable $175 million. If the system is just, Trump will win this case of manifestly weaponized justice in favor of a return to normalcy. The operation of law should be generally predictable. The outcome in this case has been anything but.