FedSoc Founder Calls Trump Verdict ‘Kafkaesque’ In Case You Missed The Part Where Josef K. Used Multiple Valuations To Defraud Lenders & Insurers

// Northwestern law professor Steven Calabresi took to the digital pages of Volokh Conspiracy to cry foul over Donald Trump’s “Kafkaesque” treatment in the New York courts after the court leveled a $355 million (plus interest!) penalty upon the former president based on years of shady financial dealings in the state of New York — willfully misrepresenting with the value of the Trump organization’s assets.

The protagonist of The Trial, Josef K., never learned why the authorities were after him. Presumably if he had left a lengthy paper trail of years spent defrauding banks Kafka might have mentioned it. So unless Calabresi intends “Kafkaesque” to refer to “Unmasking the Confidence Trickster,” it seems inapposite. Maybe that’s why Calabresi doesn’t limit his half-baked analogies to Kafka.

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“A Stalinist nightmare in New York State,” Calabresi wrote.

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It’s curious that the professor chose to compare the matter to the Stalinist era since Calabresi found himself in a low grade purge a couple years back. After publicly voicing support for affirmative action — doubleplus wrongspeak in the halls of the Federalist Society — the organization’s leadership voted to bar him from describing himself as either co-founder or co-chair.

OMG! #FedSoc tries to muzzle 1 of its own leaders! See transcript of interview I did this A.M. w Steve Calabresi abt his ISL brief at #SCOTUS pic.twitter.com/fC9gDgsaYK

— Nina Totenberg (@NinaTotenberg) November 11, 2022

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That he’d very belatedly claimed that Donald Trump should be impeached as a threat to constitutional order couldn’t have helped his cause either.

While history focuses on the millions of Soviet citizens kidnapped, tortured, and killed by the Stalinist purges, there are many more who escaped doom by making increasingly obsequious loyalty overtures. Composer Dmitri Shostakovich found himself on the wrong end of Stalin’s stick and churned out a symphony subtitled “A Soviet Artist’s Response to Just Criticism.” Ever since getting kicked in the gonads by his own organization, Calabresi has gone on a tear forcefully defending Clarence Thomas’s right to take bribes (Thomas “has every right to accept gifts from wealthy friends“) and now declared financial fraud legal as long as Dear Leader commits it.

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But Shostakovich’s work is universally regarded as the height of musical snark — an elaborate scathing critique of Stalin dressed up as an homage. So… is Calabresi offering up his best Shostakovich impression?

When he wrote about Thomas, we flagged the unabashed lunacy of his argument and wondered if Calabresi might be taking a satirical swipe at the conservative legal movement’s willingness to swallow nonsense over principle to defend its orthodox idolatry. Most critics wrote off Calabresi’s rant as a sign that he’d misplaced his marbles, but I was willing to hold out the possibility that his Thomas ramblings were too clever by half. Or more.

But what about this latest polemic? Is Calabresi serious about this?

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After a certain point, it feels cruel to continue letting a once-prominent academic blog his way through a very obvious mental breakdown into paranoid delusions. Someone needs to exercise some editorial judgment here. The author needs a wellness check, not a polite rebuttal.

— Mark Joseph Stern (@mjs_DC) February 19, 2024

OK, so that’s one take.

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Calabresi begins by declaring financial fraud a “victimless crime” because the banks involved all eventually got repaid. To wit, he declares the NY law a “Bill of Attainder” that was:

… pursued by Letitia James, a politically ambition [sic] Democrat, who is the Attorney General of New York State, and who hopes to win a future Democratic primary for Governor of or Senator from New York State…. because they despise his political views and desperately want to call his truthfulness into question as he runs for President of the United States inn [sic] 2024.

As the Simpsons would put it:

We’re certainly not above the occasional typo in blogging. But we’re trying to churn out multiple articles a day, not spending the weekend crafting the master defense narrative for double dealing in valuations.

It’s also not a victimless crime just because he managed to pay it off. Ponzi schemes don’t only become illegal when they miss a payment. Or as Orin Kerr put it in a response post:

The basic idea, I take it, is akin to when a state suspends a driver’s license for drunk driving. The state has granted the person a driver’s license, premised on the idea that the person will drive reasonably safely. But when a person has been shown to drive dangerously, the state will come in and revoke the license. Critically, that’s true even if the person who drove drunk made it home safely on that particular trip.

But if we outlawed crime then only outlaws would commit crime! Or something.

Calabresi also laments that the law at issue has never been used that way before, a claim that Kerr challenges by… actually taking 10 seconds to query Westlaw.

But no matter. Calabresi has no time for your petty “research.” The stakes are too high…

In doing this, the have violated Trump’s First Amendment right to freedom of speech and of the press; his Fifth Amendment right not to be deprived of liberty or property without due process of law; his Fifth Amendment right not to have property taken away from him except for a pubic [SIC!!!!] use with just compensation being paid; his Eighth Amendment right not to be made to pay an excessive fine; his Article IV, Section 2 right as a citizen of Florida to do make and enforce contracts in New York on the same terms as are other New Yorkers; and his Fourteenth Amendment right to be free to pursue an occupation without unnecessary and burdensome regulation.

And the Geneva Conventions! And the UN charter! And Starfleet’s Prime Directive!

In the annals of “sic” I think “pubic use” is my new favorite.

What in the fuck is he even talking about? There’s not a First Amendment right to defraud someone. Trump enjoyed all the fruits of due process in this case, up to and including the judge bending over backward to afford Trump due process that he wasn’t even entitled to. It’s not a “fine,” it’s disgorgement of ill-gotten gains! And, after this decision, Florida citizens continue to have every right to not commit fraud in New York.

If there’s anything Kafkaesque about this case, it’s in the wrinkle requiring Trump to put up the whole amount of the award before pursuing an appeal — an outcome required because the order’s ban on him seeking a loan in New York would prevent him from posting bond. Though how real is this concern? Dog the Bounty Hunter isn’t putting up $400+ million. It seems unlikely that this restraint has any practical effect.

The civil fraud judgment against Donald Trump is a travesty and an unjust political act rivaled only in American politics by the killing of former Treasury Secretary Alexander Hamilton by Vice President Aaron Burr. If the New York State appellate courts do not reverse this judgment, the U.S. Supreme Court MUST grant cert on this case and reverse Judge Engeron’s [sic again!] outrageous decisions. National, presidential politics will be permanently altered if a local State’s legal system can be used in this way against candidates for President of the United States. This case raises a national issue of profound importance and if the New York State appellate courts do not address it, the U.S. Supreme Court MUST!

This has got to be satire. He’s making Hamilton jokes and demanding that the United States Supreme Court take up a challenge to the constitutionality of a statute that says “don’t commit financial fraud.” This is a parody of slightly less unhinged but equally sophomoric MAGA defenses. Calabresi is just dialing Jonathan Turley up to 11 to prove a point.

Right?

President Trump’s Kafkaesque Civil Trial in New York State [Volokh Conspiracy]

Earlier: Clarence Thomas Can Take Bribes Because He Grew Up Poor, Declares Professor
Federalist Society Tells Founder He Can’t Call Himself ‘Founder’ In Purity Purge
Federalist Society Founder Thinks Trump Should Be Impeached (Now That He’s Confirmed All Those Judges)

Topics

Courts, Donald Trump, Law Schools, Steven Calabresi