President Donald Trump is enduring a Stalinist onslaught of lawsuits calculated to bankrupt him and hold show trials designed to imprison him. All of this would have seemed unfathomable just a few years ago.
A hardly-disguised conspiracy of judges, prosecutors, elected officials, bureaucrats, academics, and media figures feverishly plot the destruction of Trump through relentless lawfare in a desperate gambit to keep him out of the White House, apparently unsure they can rig the election with mail-in ballots like they used the COVID hysteria to do back in 2020.
One of the most powerful tools in this arsenal of lawfare is disgorgement. Increasingly in vogue, disgorgement has become a devastating weapon corrupt judges and prosecutors deploy to impoverish the victims of their lawfare schemes. Disgorgement is ordinarily defined as an equitable remedy to recover ill-gotten profits arising from civil or criminal frauds or other schemes and then distributing those recovered profits to genuine victims—a form of restitution. Prosecutors traditionally used this remedy to go after funds held by backers of terrorism, Ponzi schemes, organized crime, and other authentic criminal enterprises.
However, as the rule of law is debauched and impartial judicial proceedings are replaced with kangaroo court spectacles, disgorgement is being dramatically reinterpreted and expanded to punish those deemed enemies of the state. Indeed, disgorgement is no longer utilized only to make bona fide fraud victims whole. Instead, the federal government and states increasingly use (abuse) disgorgement to punish civil and criminal defendants, confiscate all of their money, and dump that money into the government’s coffers without a single penny sent to any victims. And, there is a logical but sinister explanation for this disturbing phenomenon—in many modern disgorgement cases, there is no victim.
New York Attorney General Letitia James and New York State Supreme Court Justice Judge Arthur F. Engoron recently joined forces to bring this new disgorgement paradigm—punishing defendants for victimless and often entirely legal conduct—to the forefront of current legal discourse as never before. In the case of People of the State of New York by Letitia James, Attorney General of the State of New York v. Donald J. Trump et al., Index # 452564/2022, presided over by Engoron, James advanced the absurd theory that President Trump had violated the arcane New York Executive Law by supposedly misrepresenting the value of his various real estate holdings to obtain loans from major banks that, in her partisan view, he would not otherwise have obtained.
The remedy sought by James: disgorgement of Trump’s hard-earned profits. It mattered not to James—who campaigned on her promise to “get Trump”—that all of these banks made tidy profits working with President Trump, wanted to do more business with him (they called him a “whale” client), and he never missed a loan payment. Bank employees even testified that loan clients routinely present far higher valuations of their real estate than the banks and that banks accordingly apply a “haircut” as high as 50% to client valuations. In other words, President Trump’s interactions with the banks were routine in the world of big-time real estate investment.
Yet, in his abominable ruling issued on February 16, 2024, after a non-jury trial, Engoron imposed a $364 million disgorgement penalty against President Trump (at the time of this writing, this penalty has swelled to over $464 million due to interest). Engoron speciously claimed that disgorgement must be used to protect “the integrity of the financial marketplace and, thus, the public as a whole,” which is entirely without precedent in American jurisprudence. Meanwhile, the showboating James, incapable of class and humility, spikes the football daily as she displays a counter on her X profile showing how much money President Trump owes. What these anti-Trump authority figures both overlooked, though, is that disgorgement was never intended for this broad “public” purpose, only for making whole specific victims of illegal activity.
Because it is clear that disgorgement used to mete out punishment rather than provide restitution falls squarely within the meaning of the 8th Amendment, President Trump and other victims of this abuse must attack disgorgement head-on using the blueprint above. There is no place in our justice system for the Communist-style wealth confiscation unfolding in New York’s court system. We can only hope that the Supreme Court will have something to say about this pressing issue in the very near future.
Gavin Wax is a New York-based conservative political activist, commentator, columnist, operative, and strategist. He also serves as 76th president of the New York Young Republican Club and as an ambassador for both Turning Point USA & Live Action. You can follow him on X, formerly known as Twitter, at @GavinWax.
Edward Andrew Paltzik is a nationally known constitutional litigator. He is of counsel to Manhattan-based Bochner PLLC, litigation director for the National Constitutional Law Union, and outside counsel to the Second Amendment Foundation.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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