Last Friday, Donald Trump filed a notice of appeal from the $83.3 million judgment against him in the E. Jean Carroll defamation case. He also posted a bond in the required amount of $91.63 million dollars, which reflects the judgment plus interest. The bond was furnished by Federal Insurance Company, a subsidiary of the Chubb Group. This is good news for E. Jean Carroll because the bond guarantees that the judgment will be paid if she prevails on appeal.
The Judge gave Carroll’s lawyers until Monday morning to file objections to the bond—he’ll hold a hearing at 3 p.m. that same day if they do. There is an unusual provision in the bond that would give Chubb 60 days from the date final judgment is entered in Carroll’s favor (if she wins on appeal) to make payment to her, which her lawyers might seek some clarification on, and there may be some technical details to work out. But after all the concern about Trump’s ability to pay, the bond means that if he doesn’t, Chubb must tender the full amount. They can collect from Trump in turn, but doing that would be their problem. This certainty of payment is why it’s extremely unusual for a prevailing party to oppose a bond properly obtained through a surety. Chubb is an international insurance business and reports it has more than $225 billion in assets. They provide various types of surety bonds as part of their normal business operations. They operate in 54 countries and territories, offering commercial, personal property, and casualty insurance, as well as personal accident and supplemental health insurance, reinsurance, and life insurance to what their website characterizes as “a diverse group of clients.” Their business is to assess, assume, and manage risks, and they maintain high ratings. In other words, it’s strictly a legit business enterprise. There is a little irony here. Chubb’s website notes that it maintains a “rule of law fund” and that it is “committed to the advancement and preservation of the rule of law.” Its goals include:
You just can’t make this stuff up. The real unknown here is how Trump backed up his promise to pay. $91.63 million is nothing to sneeze at, and a company like Chubb would want guarantees. Sure, Trump owns significant property, but it can take time to sell the types of properties he owns, which makes them less attractive as collateral, and accounts of how much cash he has on hand have varied. That has raised the possibility that a silent third party, or multiple third parties stepped in to help out Trump via Chubb. While it’s not entirely outside the realm of possibility for the court to make information in this vein public, it’s more a question with serious political dimensions. That means the responsibility falls on the press to ask Trump and the campaign at every turn, until we get an answer, how the bond was obtained. If Trump did it with his own assets, he should be more than willing to bolster his financial reputation by saying so. If he’s unwilling to share details, that should raise red flags. But if someone helped him out, then Americans have a right to know who the all-but-certain Republican nominee for president owes $91.63 million worth of favors. The potential merger of Trump’s social media company might be playing a role here, although that deal is still undone, which makes it too speculative to be likely. Saturday morning in Delaware Court of Chancery, two of the early founders of Trump Media and Technology group, who had been standing in the way of that deal, struck what the New York Times reported was a “temporary truce” with Trump’s company. That clears the way for shareholders to vote on the deal. If they approve the merger, Trump’s media company will get $300 million in cash for operations, and his net worth will be boosted by as much as $3 billion or more. There is no indication that the deal played a role, one way or the other, in Trump’s ability to obtain a bond, but it would be good news for Trump since the clock is ticking on the bond he will have to obtain for half a billion dollars in the New York Attorney General’s civil fraud case by March 25 if he wants to stave off her collection efforts while that case is appealed. On the campaign trail in Rome, Georgia, Saturday night, Trump was back at it again, defaming Carroll. “I just posted a $91 million bond, $91 million on a fake story, totally made-up story,” he said. “Ninety-one million based on false accusations made about me by a woman that I knew nothing about, didn’t know, never heard of, I know nothing about her.” “She wrote a book, she said things. And when I denied it, I said, ‘It’s so crazy. It’s false.’ I get sued for defamation. That’s where it starts.” Trump thinks his $83.3 million buys him a license to defame Carroll endlessly. Carroll may view it differently. Rome is in the Northern District of Georgia for those who may want to speculate at this point about whether Carroll will sue Trump for a third time. That is the same court where federal Judge Stephen C. Jones refused to remove the Fulton County district attorney’s prosecutions of Trump co-defendant Mark Meadows and others from state court to federal court. On Thursday, the focus shifts to the Mar-a-Lago case, where Judge Cannon has set a non-evidentiary hearing (she wants to hear legal arguments from the lawyers, not evidence from witnesses) on a series of motions by Trump to dismiss the prosecution on grounds including unconstitutional vagueness and the Presidential Records Act.
You’re probably familiar with Trump’s claims that the Presidential Records Act prevents his prosecution for possession/retention of classified documents after he left the White House. He’s advanced this specious garbage on the campaign trail, claiming that his magical designation of the highly classified documents as his own records is a get-out-of-jail-free card. Special Counsel Jack Smith explains in his opposition to the motion to dismiss that the law Trump is charged with violating, 18 U.S.C. 793(e), “prohibits the unauthorized possession and willful retention of national defense information. Even if the raft of highly classified documents that Trump took from the White House to Mar-a-Lago were somehow categorized as ‘personal’ under the PRA, that would not render his retention of those documents ‘authorized’ for purposes of Section 793(e).” In other words (and you’ll forgive me), the Presidential Records Act doesn’t trump the prohibitions against mishandling classified information. Smith concludes, “Trump was not authorized to possess classified records at all (let alone at unsecured locations at Mar-aLago.” Even if Trump was correct here, which he isn’t, this argument would, at best, apply to his illegal retention of the documents and not to Trump’s obstruction of the investigation, which is a separate crime. Smith also contests Trump’s argument that the records qualify as presidential records, noting that a president’s designation isn’t binding even if made properly and that Trump’s “implied” designation of the records is subject to judicial review. Trump argues that because the records were sent to Mar-a-Lago, not the National Archives (NARA), they’re presumptively personal, and he was entitled to them. Smith argues that the nature of the documents establishes that they are presidential records and that the court isn’t bound by what Trump says. Smith also dismisses Trump’s claim that while the government may seek a civil remedy—return of the records—he cannot be prosecuted. The remedies available to NARA to try and recover records don’t preempt criminal statutes and again, even if correct, and again, it isn’t, this argument has no impact on the obstruction charges against Trump. Judge Cannon has shown more than considerable tolerance for Trump’s most specious arguments in the past, requiring the Eleventh Circuit Court of Appeals to not-so-gently step in and correct her decisions. We’ll learn whether she’s had a change of heart when she rules on these motions or whether her thumb remains on the scales of justice in Trump’s favor.
Finally, Friday is the day when a ruling on motions by multiple defendants in the Fulton County case to disqualify district attorney Fani Willis and her former boyfriend, prosecutor Nathan Wade, is expected. If Willis is removed, the process of appointing a replacement for her would all but ensure the case doesn’t see the light of day before the election. I’ve never seen a defendant get as many breaks and manage to sustain as much delay as Trump has across his four criminal cases. If Trump is reelected, the American people will never get justice where he’s concerned. Justice requires a fair resolution of the cases against him by a jury. Justice happens when a defendant, especially a powerful one, goes through the process our Constitution and laws establish for every person charged with committing a crime. Our criminal justice system will be tarnished, perhaps beyond repair, if Trump is reelected and uses the power of the presidency to end or suspend the prosecutions against him. The nine Justices on the Supreme Court would do well to consider that as they continue to let the clock tick on his presidential immunity appeal, which won’t be decided any sooner than following oral argument on April 22. We all know what that means: it’s up to us to get out the vote. Remember to encourage people around you to register and check their registration status before the general election, educate themselves about candidates up and down the ballot, and have a plan for voting, which is especially important in states that restrict how and when citizens can cast their ballots. We’re in this together, Joyce You're currently a free subscriber to Civil Discourse with Joyce Vance . For the full experience, upgrade your subscription.
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Sunday, March 10, 2024
The Week Ahead
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