July 20, 2024
The civil case against Donald Trump was brought by New York Attorney General Letitia James, a prosecutor who campaigned for her elected office on a pledge to get Trump. By bringing a civil case rather than a criminal prosecution, James denied Trump a jury trial, which he could not have gotten on this kind of case; a requirement of proof beyond a reasonable doubt, and other constitutional safeguards. Now she seeks to deny him the protection of the Eighth Amendment’s prohibition against excessive fines. Pictured: James arrives at Trump’s civil trial on October 2, 2023 in New York City. (Photo by Michael M. Santiago/Getty Images)

Is Trump’s Mega-Fine Unconstitutional?

Arthur Engoron, the New York Supreme Court judge in the real estate case brought against Donald Trump by the state attorney general, has fined Trump and members of his family $464 million. This raises the question of whether the fine – which does not reflect damages actually done – is “excessive” under the Eighth Amendment of the US Constitution, which reads as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The court also ordered Trump to pay $111,ooo per day in interest, and that he “be barred from serving as an officer or director of a New York corporation or other legal entities in the state for three years, and cannot apply for loans from any financial institution registered in the state for three years…”

In addition, the court fined his two sons, Donald Trump Jr. and Eric Trump, $4 million each, and banned them from serving as executives at the Trump Organization for two years.

Although the Eighth Amendment is not explicitly limited to criminal cases, its three subjects— bail, fines and punishments — all relate generally to criminal cases. Trump’s fine was imposed in what was denominated a civil case. But it was not a traditional civil case between private parties, because no private parties were allegedly damaged by Trump. It was a case brought by the State of New York, which would receive the fine. Moreover, the fine was intended to deter the kind of conduct of which Trump was accused.

These factors make the fine seem closer to the usual attributes of a public criminal case than of a private civil case. A functional analysis of the fine in this case could well conclude that it is really criminal in nature and should be covered by the Eighth Amendment.

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