President-elect Donald Trump wants New York Attorney General Letitia James to drop the civil fraud case against him, his adult sons, and his namesake business empire.
In a four-page letter sent Wednesday, attorney D. John Sauer, the likely next solicitor general, described the request as a potential fig leaf that the Democratic Party prosecutor could offer the 45th and 47th presidents.
“In the aftermath of his historic election victory, President Trump has called for our nation’s partisan strife to end and for the contending factions to join forces for the greater good of the country,” starts the letter. “This call for unity extends to the legal onslaught against him and his family that permeated the most recent election cycle.”
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“This case, like the many others against President Trump, is a flashpoint of national partisan division,” according to the letter. “You now have the singular opportunity to help cure this division.”
Of course, the majority of the other cases have been abandoned.
Trump’s two federal cases faced outright dismissal, each for a distinct reason. The criminal prosecution in Fulton County, Georgia, is in appellate limbo, with the November results casting doubt on its future.
Even the Manhattan District Attorney’s Office’s criminal prosecution, which is the only one of the unavoidably politically charged controversies to go to trial, appears to be in the legal equivalent of a cryotherapy chamber.
Sauer’s letter assesses the post-election landscape, with the exception of the ongoing case in Georgia.
“Other Democratic officials and prosecutors are abandoning their discredited lawsuits against President Trump,” according to the letter. “This case warrants the same treatment.”
The civil fraud case dates back to 2019 and is based on sworn congressional testimony from Trump’s former friend and fixer, Michael Cohen. Under questioning from Rep. Alexandria Ocasio-Cortez, D-N.Y., Cohen claimed that the Trump Organization inflated assets to insurance companies and that the company’s tax returns likely contained similar but distinct financial irregularities.
Following a multi-year investigation, James and her team filed a $250 million civil fraud lawsuit against Trump, his children, and the Trump Organization in September 2022.
In September 2023, a Manhattan judge found Trump, Donald Trump, Jr., Eric Trump, several of their top lieutenants, and various corporate organizations that comprise the Trump Organization to have committed fraud on motions for summary judgment filed by James.
The court also ordered the costly cancellation of numerous licenses that allowed the Trumps to conduct business in New York State. Additionally, the court fined several of Trump’s attorneys $7,500 each for allegedly making frivolous arguments.
To ascertain the extent of liability, a bench trial, or trial without a jury, took place between October 2023 and January of this year.
In February, New York Supreme Court Justice Arthur Engoron imposed a civil penalty of approximately $354 million, which was slightly less than James’ request of $370 million.
The case dragged on.
James threatened to seize Trump’s assets; Trump claimed James was breaking the law by attempting to collect on the verdict while avoiding procedure; Engoron rejected efforts to slow things down.
Then, after Trump posted a bond to appeal the verdict, James asked the court to rule that the bond was simply insufficient, but Trump fought back, eventually gaining a significant advantage this spring.
On appeal, Trump and his company appear to fare much better.
During a hearing in late September, the court treated Trump’s arguments much more favorably than those advanced by James’ office. One judge from the New York Supreme Court’s Appellate Division, First Department, said the “immense penalty” imposed on the Trump Organization in the case was “troubling.”
In the letter, Sauer repeats many well-worn arguments that Engoron refutes, but which appear to have won the day with the court of appeals. However, he begins with one that the appeals court appeared unmoved by.
“[T]he statute of limitations bars claims and liability,” the letter states. “[T]he Supreme Court erroneously and disrespectfully used the continuing-wrong doctrine to revive long-defunct claims.
This resulted in an indefensible judgment that directly violated the statute of limitations. The case should be dismissed for that reason alone.”
Other arguments rejected by Engoron were embraced by the appellate court, including the notion that there were no victims in the case, that Mar-a-Lago had been drastically undervalued by the trial court, that Trump’s profits had been similarly undervalued, and that reliance on certain accounting principals might benefit the defendant’s arguments.
Since then, the appeals court has not indicated what it might do, nor has it even discussed a timeline for its decision. Still, Trump and his company would prefer a resolution sooner rather than later.
So, now, the once-and-future president is looking for a straight flush — and framing it as a chance for James to avoid embarrassment in the ongoing case.
“As detailed in our appellate briefing, this action exceeds the New York Attorney General’s authority,” according to the letter. “Stipulating to the vacatur of the judgment and the dismissal of the case would restore the NYAG’s power to its more legitimate scope.”
Sauer also contends that the case must end — or will be more or less stalled — due to the lead defendant’s status.
“President Trump will soon take office as the 47th President of the United States,” the letter states. “Thus, the continued pendency of this lawsuit raises ‘grave and doubtful constitutional questions,’ and greatly disserves the national interest.”
The request to vacate the judgment also cites a long-standing internal rule of the United States Department of Justice that advises against pursuing criminal prosecutions against sitting presidents.
The letter then goes on to say, at length:
The federal Special Counsel’s office relied on this opinion yesterday in voluntarily dismissing the criminal case against President Trump. The same concerns arise from a civil fraud enforcement action, like this one, where six of the seven causes of action are based on alleged violations of criminal law. Indeed, it would be “perilous” to permit such an action to remain pending against a sitting President, because doing so “would risk imposing … burdens that would make it impossible for a President to effectively carry out his constitutional duties.”
“Likewise, the Supremacy Clause prevents state prosecutors from proceeding against the sitting President in any way,” the letter goes on.
Sauer then offers a lengthy series of references to mythologized presidents of the past — like Abraham Lincoln and John F. Kennedy — and quotes their paeans to national unity and accord.
This argument gives James something not entirely unlike the chance to vindicate herself in the eyes of history as-seen-by Trump.
“Invoking the same spirit of unity, we request that you stipulate to the vacatur of the Judgment and dismissal of this case with prejudice,” the letter concludes.
