Unless the people I’m talking to are lawyers or professional historians, I’ve discovered that mentioning the words “bill of attainder” receives, at best, blank looks and, at worst, an irritated request for more information, typically of the form “what the hell is that?” Even lawyers often get a distant look as they struggle to remember the details of a concept that dates back to the 14th century.
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Yet so common was the bill of attainder in British history in pre-modern times that it was a fairly normal way of dealing with the rebellious — or, indeed, just those whom the authorities found uncongenial. And so much did the Founding Fathers dislike its use that they deemed it important enough to have its own mention in the Constitution, which expressly forbids it under Article I, Section 9, Clause 3: “No Bill of Attainder or ex post facto Law shall be passed.”
But what is this strange creature?
The word “attainder” derives from the adjective “attainted,” which was used to define individuals whose legal rights had been removed. All of them. They lost the right to own property and bear titles; they could not enter into legal agreements, nor could their heirs inherit from them. They were often summarily executed, and they forfeited all their possessions to the state, in this case the Crown, or as much of it as the rulers could get their hands on. What makes bills of attainder unique in legislation — and insupportable — is that they imposed draconian penalties on specific individuals without the need to find them guilty in a court, for they had lost their right to a jury trial or, indeed, any trial at all.
Now, if this sounds hauntingly familiar in modern America, that’s because it should. Bills of attainder may be unconstitutional, but acting in ways essentially equivalent apparently is not.
Consider the lawfare being directed at Trump. Only the naïve or the prejudiced could seriously believe that the indictments leveled at him would be directed at anyone else. They’re aimed at one man, and his first name is Donald, his last name Trump.
Enter Judge Arthur Engoron, and the indictment for fraud brought by New York Attorney General Letitia James.
This case is astonishing on so many levels. First, no one is claiming injury here: Banks loaned money to Trump based on the value of his assets. Trump repaid the loan, with interest. The banks had not the least inclination to sue him, since they had suffered no injury.
So why is this fraud? Well, because Engoron found — based on his judicial know-how, and little else — that Trump had overvalued his assets to get the loan. But hold on — isn’t the value of an asset based on what the market says it is, which includes the banks that made the loan? And didn’t the banks disregard the value Trump had put on his assets and make their own assessment on that score? Indeed, the “victims” testified that they were more than happy to have him as a client. He was, to use their word, a “whale” of one.
But according to Engoron, all this doesn’t matter. He stated clearly that “materiality” — whether anyone was misled by Trump’s actions — doesn’t matter in New York law. All that matters is “the capacity or tendency to deceive.”
This means that no actual deception needs to have occurred for Trump to be found guilty of it.
MSNBC’s Katy Tur recently “cited an Associated Press analysis that exposed the unprecedented nature of the case and how New York’s treatment of Trump is incongruent with past cases,” according to Blaze Media. She argued:
They went back over 70 years and looked at all the cases that have been tried under this rule — [New York Civil Practice Law] 6312, which is used here — which doesn’t have to show harm done. That’s not the burden. You don’t have to show that anybody was hurt by your practices. There’s nobody you defrauded specifically.
They went back and they looked at cases over 70 years — I believe it’s about 150 cases — and found there was no case where there was a ban on doing business where there wasn’t harm shown.
And the penalties imposed by Engoron are not merely harsh. They are potentially confiscatory:
Nor is this all, for, as always, the devil is in the details. Trump can appeal this ruling, and he’s officially begun the process. But in order to appeal, he will have to post bond for the amount of the penalties listed in the judgment. Getting a bond for nearly half a billion dollars is going to be extremely difficult, especially since almost all the major financial organizations are in New York, and he is no longer allowed to take out loans in that state. Even if he manages it and his appeal succeeds, he will still lose tens of millions of dollars in fees to the bond company.
If one were of a suspicious mind, one might surmise that Engoron imposed the most massive fines he could in order to make it as hard as possible for Trump to appeal his ruling.
Surely not!
Now consider how similar this is to a bill of attainder. First, such a bill removes the legal rights of the target. Engoron has made an appeal against his ruling as difficult as possible. Further, draconian penalties have been imposed on Trump without the need to find him guilty of anything in court. As with a bill of attainder, the target’s ability to hold offices and function is withdrawn. His property is seized and removed from his control. Finally, since there is no aggrieved party claiming redress, the Crown — the state, in this case — takes the wealth forfeited. His heirs are punished — not for what they did but because they are his sons.
This is a bill of attainder in fact, if not in name. It differs only in that it comes from a court rather than a legislature.
I am not the only one to share this view. As Steven Calabresi of the Northwestern Pritzker School of Law commented recently in Reason:
Ms. James and Judge Engeron have essentially turned a vaguely worded New York State law into a modern day Bill of Attainder targeted at Donald Trump both for political gain and because they despise his political views and desperately want to call his truthfulness into question as he runs for President of the United States [in] 2024. In doing this, they 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 public 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.
It seems that judges have found an end-run around the constitutional prohibition on bills of attainder. I suppose we can only wryly comment, “Clever.”
Anthony Tye Rodrigues is a retired academic living in Texas and the author of a book set in Britain in the later Roman Empire. His latest, Gemini, is the first published novel of a proposed trilogy.
