On Friday, Citizen Trump tried to delay posting the required bond while he appeals the E. Jean Carroll verdict. His request was a master class in fantasy, sophistry, and pasta flinging. On Sunday, Judge Lewis Kaplan told him no — at least for now.
"The Court declines to grant any stay, much less an unsecured stay, without first having afforded plaintiff a meaningful opportunity to be heard," Kaplan wrote in an order filed Sunday morning. Kaplan set a Thursday deadline for Carroll's response and a March 2 deadline for Trump's reply.
Will Trump succeed when everyone has their say? I do not know. But I doubt it. As usual, his lawyers produced an overwrought and histrionic effort. Here is what swing-and-hope desperation looks like in a legal document.
Background
Trump asked Kaplan to drop the requirement that he post a bond to appeal the E. Jean Carroll defamation verdict and its $83.3 million penalty. He argues that he is so rich he should not have to spend any money.
Alternatively, if Kaplan insists Trump must put up something, would he please make it a token amount? Because everybody knows the financial penalty is way out of line and will be reduced bigly. Besides, Carroll did not suffer much. And the ratio of punitive damages to the emotional distress and reputation rehabilitation penalties is far too high.
For once in his life, Trump is under the gun. He faces enormous financial losses. The clock is ticking down on a narrow window before E. Jean Carroll can enforce the judgment and get her money.
Under civil law, when the Judge enters the judgment, the loser has to pay the penalty immediately. Or if they choose to appeal, the penalty automatically stays. The defendant has 30 days to post cash or a bond of 110% of the award while the appeal court considers the case.
Trump’s case
In Trump’s case, the court entered its judgment on February 8, starting the clock for the 30-day automatic stay of judgment. If Trump fails to post a bond of $91.6 million or get the bond requirement stayed by March 9, Carroll can immediately begin collecting.
Trump is desperately pumping the brakes. The ‘can’t fake smart’ Alina Habba and her Florida sidekicks, D. John Sauer and William O. Scharf, filed a MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STAY EXECUTION OF THE JUDGMENT PENDING DISPOSITION OF THE POST-TRIAL MOTIONS to try and buy time.
Let us have a look at it. After a table of contents and a list of supposedly relevant cases, we get to the ask:
Pursuant to Rule 62 of the Federal Rules of Civil Procedure and this Court’s equitable authority, Defendant President Donald J. Trump respectfully requests that this Court grant an unsecured stay of the execution of the Court’s February 8, 2024, judgment until 30 days after the resolution of President Trump’s post-trial motions under Rules 50 and 59 of the Federal Rules of Civil Procedure, which will be filed no later than March 7, 2024.
[Bolding mine]
In short, Trump wants to pursue his legal remedies without having to fork over any cash.
Realizing that Kaplan would dismiss the ludicrous no money up-front request, Trump lawyer’s immediately offered a second option:
In the alternative, President Trump requests that this Court grant a partially secured stay of execution until 30 days after the resolution of post-trial motions and authorize President Trump to post a bond in an appropriate fraction of the amount of the judgment.
In other words, if the Judge wants Trump to put up some security, could he pretty please make it less than the big number? As we will see later in Trump’s plea, he means a lot less.
LEGAL STANDARDS
The lawyers start with a Hail Mary. They cite cases in which:
- A district court therefore may, in its discretion, waive the bond requirement ‘if the appellant provides an acceptable alternative means of securing the judgment.’
- The district court in its discretion may order partially secured or unsecured stays if they do not unduly endanger the judgment creditor’s interest in ultimate recovery.
- It is within the court’s discretion to grant a partially secured or unsecured stay.
This list raises several questions.
- What “alternative means” is Trump offering?
- Why should Kaplan believe a serial bankrupt, notorious for stiffing people, not “unduly endanger the judgment creditor’s interest in ultimate recovery” if he did not have to post a bond?
- Why does the right of a court to grant “a partially secured or unsecured stay” mean it should?
The brief goes on to list several “non-exclusive factors” allowing a “stay of execution” (of the bond), including:
“the degree of confidence that the district court has in the availability of funds to pay the judgment”
Considering that Trump has been convicted of a long-term, massive fraud arising from his endless lying about the value of his assets, I imagine the court’s “degree of confidence” is zero.
ARGUMENT
Trump’s lawyers then shift their prevarications into high gear and claim there should be no bond because its amount is uncertain. In the section: An Unsecured Stay of Execution Is Appropriate Where, as Here, Post-Trial Motions Are Substantially Likely to Affect the Amount of the Judgment, they write:
First, an unsecured stay is warranted where the size of the bond, if any, remains uncertain because post-trial motions are very likely to affect the amount of the judgment.
“Substantially likely” and “very likely” are just hot air. Kaplan has been a federal judge for 30 years. He has a stellar reputation. I am confident his instructions to the jurors were well within the letter and spirit of the law. So, while it is impossible to predict what an appeals court will do, there are no grounds for assuming they will substantially or very likely change the amount of the judgment.
And there is no possibility they will throw it out in toto. So an “unsecured stay” is unwarranted.
Next, under the heading The punitive damages award is excessive and will likely be reduced, Trump’s legal team argues:
First, the punitive damages award is plainly excessive. Under binding Second Circuit precedent, it violates both the Constitution and the federal common law.
No doubt in MAGA world, the award is “plainly excessive”. However, in the land of the sane, this appraisal is not getting any traction. And it is up to the appeals court, not Trump’s lawyers, to decide if the damages award is excessive.
Next, the lawyers do some math:
The jury’s verdict, as reflected in the judgment, awards $7.3 million in compensatory damages for emotional injuries, plus $11 million in compensatory damages for the reputation repair program, for a total of $18.3 million in compensatory damages. The jury then awarded $65 million in punitive damages, creating a punitive-to-compensatory ratio of 3.6:1.
They then argue that the “ratio” is too high, as are the compensatory damages. They claim that the appropriate ratio should be 1:1 — which would reduce punitive damages to $18.3M. (For a total of $36.6M in total.)
The lawyers then argued that the emotional and reputational awards were too high. In the section The compensatory damages award is likely to be reduced, they write:
“In this Circuit, emotional distress awards ... can generally be grouped into three categories of claims: garden-variety, significant, and egregious.”
They argue that Carroll’s emotional distress was ‘garden-variety’ — mainly because she did not introduce any medical testimony. Oh, please! This latest trial is Trump’s second for defaming Carroll. How garden-variety is that?
In addition, Trump continued his attacks during the trial in front of cameras and in the courtroom. He has a rabid social media following in the millions. He inspired a riot. And Carroll received death threats. She must have been terrified and in fear for her life.
It gets worse. They continue:
Because Plaintiff’s evidence establishes, at most, “garden-variety” emotional distress, the compensatory damages award for non-reputational injury should be reduced to no more than $125,000.
They then ignore the reputational damages award ($11M) completely — did they think if they did not mention it, everyone would forget about it? — and state that, based on their 1:1 formula, the punitive damages should also be $125,000.
Accordingly, the Court is likely to grant a new trial or remittitur of the $7.3 million compensatory damages award in this case to no more than $125,000, which would result in a corresponding reduction of the punitive-damages award in the one-to-one ratio discussed above.
It is a slick magic trick — $83.3 million changes into $250,000.
Trump’s lawyers get even sillier. In the section An unsecured stay while post-trial motions are pending poses minimal risk, they argue:
Many courts have emphasized that imposing a stay of execution during the period that post trial motions are pending presents a “minimal” risk to the judgment creditor due to the relative brevity of that period.
So? What many courts may have done has no bearing on what this court did. Next.
They go on, in the section Plaintiff concedes that President Trump can satisfy the judgment, they argue
Here, Plaintiff has effectively conceded that she is adequately secured by arguing to the jury that President Trump’s resources greatly exceed the amount of the judgment.
Bullshit. Carroll did not effectively concede she "is adequately secured." Mob bosses have a lot of cash — try collecting it. In Trump’s case, there is significant doubt he has the money. His wealth is tied up in real estate. And he has been found guilty of lying about it.
Carroll argued that Trump should pay a lot because he says he is worth a lot. If he duped banks with his claims, how can a journalist be expected to know how liquid he is?
His lawyers maintain he can pay it, no problem.
[A] bond for the full amount of the Judgment is inappropriate in light of [President Trump’s conceded] ability to pay.
Is he able to pay? If we only have Trump’s word for it. The way to bet is that he does not have the ability.
Lastly, Trump’s team brings out the tiny violins. In the section Failure to Stay Execution of the Judgment Will Inflict Irreparable Injury they argue:
Here, under this district’s common practice of requiring a bond of 110 percent of the judgment, President [sic] Trump faces the prospect of posting a bond of $91.63 million—a sizeable bond which will come with very substantial, non-recoverable financial costs. These costs plainly constitute irreparable injury.
Why does he need to absorb the cost of a bond? He says he has $400 million in cash — $91.63 million is 23% of that. He could just put up the money — that costs nothing. Unless he is lying. How likely is that? (rhetorical question)
Next, in the section In the Alternative, the Court Should Authorize a Substantially Reduced Bond, the lawyers effectively concede (using their own language) that their previous arguments have no merit. They write:
Even if the Court does not grant an unsecured stay of execution pending disposition of post-trial motions and 30 days thereafter, the Court should authorize a bond in a substantially reduced amount to stay the judgment during the same period.
They suggest a reduction to ⅓ or ½ of the amount. They then sweeten their offer to the required 110% — but only if Kaplan slashes the damage award by 73%
At the very least, the Court should project that the $7.3 million compensatory award will be reduced to $125,000, and punitive damages will be reduced to a 1:1 ratio, consistent with Turley and its progeny, which would result in a total compensatory award of $11.125 million and a total judgment of $22.25 million—for which a bond of $24.475 million would be appropriate.
It seems they have remembered the reputational damages. I wonder why they did not try to get those reduced to $1.25 or similar.
In addition, they should have written “stop me when you hear something you like” at the top of their appeal.
CONCLUSION
Finally, the nonsense ends. The lawyers write:
For the reasons stated, President Trump respectfully requests that this Court grant an unsecured stay of the execution of the February 8, 2024, judgment.
What will Kaplan do?