Yes, But…

Powerful legal group with Koch ties throws weight behind Trump's $464M civil fraud appealhttps://t.co/cGkw8mr09R

— Raw Story (@RawStory) August 5, 2024

The New Civil Liberties Alliance filed over the weekend an amicus brief in Trump's challenge to the multi-million dollar civil fraud case brought by New York Attorney General Letitia James. 

"A law can punish untrue speech only if it requires a showing of injury," argued counsel Prof. Gregory Dolin. "As the old saying goes, 'Your liberty to swing your fist ends just where my nose begins.'" 

The question of harm was one repeatedly raised by Trump during the months-long trial in New York City civil court where Trump was found liable of defrauding investors and lenders by inflating the value of his assets. 

While Trump's lawyers argued that banks received their money and Trump Organization investors prospered, state prosecutors contended Trump violated the law and should face the consequences.

As I understand the status of this case, the question of liability was determined in a summary judgment hearing. That summary judgement was upheld by the Appellate Division while the bench trial on damages was underway.

Which means the only question on appeal is the issue of damages. Liability has been settled.

Professor Dolin’s statement may stand (it all depends, says the lawyer) as a general principle of common law. But this case was brought under New York fraud statutes. Further, damages were proven. The statement that “Prosecutors contended Trump violated the law” is as empty as Prof. Dolin’s quote. The prosecution didn’t just prove Trump had committed fraud, they proved it was to the detriment of the people he lied to. They proved it was in violation of the statute, and that damages of nearly half a billion were due. Trump tried to argue there were no damages. That argument failed at the trial level. Given the ruling on liability, there’s no reason to expect there was liability without injury.* This is all a bit of extra-legal hand waving.

The argument represented in this article for the amicus sounds more like uninformed commentary from Twitter than sound legal analysis.

I don’t think this helps Trump one jot. It certainly isn’t the help he really needs, which is with paying his legal fees.

*There is actually a recognition in law for liability without compensable damages. It’s called “de minimus,” from the phrase “De minimus non curat lex”, colloquially translated as “The law does not concern itself with trifling things.” The doctrine applies when there may is an an injury arising from a recognized cause of action, but with little or compensable injury presented, there is no recovery. That is not the situation here. The damages may be reduced in appeal. I doubt they will be ruled “de minimus.” If they were the appellate court would have simply rejected the liability judgment as not leading to provable damages. The very definition of “de minimus.”