Reducing Trump’s appellate bond doesn’t let him off the hook

As an attorney who has practiced civil law for some 40 years, including before the appellate division, it is obvious to me that the appellate court arrived at its result by applying a fair application of the law under unique circumstances. 

By Thursday, April 4, former President Donald Trump must pony up $175 million to post an appeal bond in the New York State fraud action to keep New York Attorney General Letitia James from enforcing the full $464.5 million judgment against his properties and bank and brokerage accounts.

The Manhattan Appellate Division’s decision reducing Trump’s requirement of posting the full amount of the judgment has been woefully misinterpreted by some as a glaring example of special judicial favoritism for Trump. In reality, the ruling as a whole strikes a fine balance between preserving Trump’s right to appeal an unusually high civil judgment and protecting New York’s hard-won judgment against a persistent white-collar fraudster. 

This problem of a perceived unfair application of the law was created by the appellate court’s failure to give any rationale for its decision. It simply issued a terse one-page opinion without explanation that only set forth its ruling. 

As an attorney who has practiced civil law for some 40 years, including before the appellate division, it is obvious to me that the appellate court arrived at its result by applying a fair application of the law under unique circumstances. 

Trump’s submission in support of his motion to eliminate or reduce the bond clearly stated that it was impossible for him to obtain a bond for the full $464.5 million judgment. He asserted that his wealth is in his properties and that he did not have the requisite cash to support a bond for the full judgment, despite his political posturing in a prior deposition and on Truth Social and in other public statements. Trump correctly pointed out that if the attorney general seized and sold those properties, and he ultimately succeeded on appeal, his appellate victory would be hollow, since there would be no way to unwind those transactions. 

That appears to be the underlying concern of the appellate court’s decision — requiring Trump to post a bond he could not possibly meet would effectively deny him the ability to appeal what is indisputably an unusually large judgment.

This is not to say that Trump’s ultimate appeal on this judgment has any merit. Judge Engoron’s findings of years of rampant fraud based on witness testimony and Trump’s own documents, and damages precisely matching Trump’s ill-gotten gains, are all supported by the trial evidence. 

Trump, however, likely hit a nerve when he used his predicament on posting the bond for the full amount of the judgment to claim that business is “treated too badly in New York.” After all, New York is the economic capital of the country, if not the world. It is obviously critical that anyone doing business in New York believe they will be treated fairly under the law and provided full due process. A robust appellate process is an integral part of that fair application of the rule of law. 

At the same time it reduced the bond to approximately 38 percent of the original judgment — $175 million is not exactly chump change — the appellate court took care to protect New York State’s full judgment. The court expressly precluded Trump’s ability to delay the appellate process by limiting the timing of that process. The court “conditioned” its ruling on Trump “perfecting the appeals for the September 2024 Term of this Court.” 

This means that Trump must file his appeal brief and supporting documents for the appeal in July, with the appeal being argued in September. During this appellate process, interest of over $100,000 per day continues to accumulate on the judgment at New York’s 9 percent statutory interest rate. 

Most significantly, the appeals court did not stay pending appeal those “portions of the judgment (1) extending and enhancing the role of the Monitor and (2) directing installation of an Independent Director of Compliance” at the Trump Organization. In other words, if Trump attempts to do anything untoward that would impair the integrity of the full final judgment, the monitor, former Federal District Court Judge Barbara Jones (whom I worked closely with at the U.S. Attorney’s Office), will undoubtedly cry foul to Judge Engoron. While the final judgment is on appeal, Judge Engoron has the continuing ability to protect the $464.5 million judgment owed to the people of New York.

Nick Akerman, a former Assistant Special Watergate Prosecutor and a former Assistant U.S. Attorney in the Southern District of New York, is an attorney in New York City.