Trump Didn’t Request—But Wouldn’t Have Received—a Jury Trial in His Civil Fraud Trial, Judge Explains

UPDATE on Oct. 11, 2023:

A little more than a week after the publication of this article, the judge presiding over Donald Trump's civil fraud trial resolved the controversy over the bench trial by clarifying that the former president wouldn't have gotten a jury trial if he wanted one.

"Nobody forgot to check off a box," Manhattan Supreme Court Justice Arthur Engoron said, referring to the notice for requesting a jury trial.

The Messenger previously reported that Trump likely would not have been entitled to a trial by jury, if his legal team had requested one, but we are updating the story and headline in light of the judge's later remarks.

Donald Trump has attacked the New York State Supreme Court judge presiding over his $250 million civil fraud trial as a Democratic “politician” on a quest to financially ruin him.

"I think it's very unfair I don't have a jury," Trump complained at a makeshift press conference outside the courtroom.

But Manhattan Supreme Court Justice Arthur Engoron noted that neither side "asked for" a jury trial. 

A jury trial probably would not have been available under New York Executive Law 63(12), the statute under which the case was brought. That's because the lawsuit only seeks injunctive and equitable relief, and instead of money damages, it seeks the disgorgement of "ill-gotten gains."

The Seventh Amendment protects the right to a jury trial in civil cases involving large cash damages, but New York State precedent holds that disgorgement is equitable.

Engoron remarked that "in any event, the remedies sought are all equitable in nature, mandating that the trial be a bench trial, one that a judge alone decides." Trump's attorney Alina Habba thanked the judge later in the proceedings for making that comment.

Trump's spokesperson emphasized their view that a jury trial was never on the table.

"The Attorney General filed this case under a consumer protection statute that denies the right to a jury," the spokesperson told The Messenger. "It is unfortunate that a jury won't be able to hear how absurd the merits of this case are and conclude no wrongdoing ever happened."

But the judge's remark highlights that neither side sought to litigate the issue.

Earlier this year, New York Attorney Letitia James filed a form with a checkmark next to the field: “Trial without a jury.” Trump’s legal team didn’t file a corresponding form, and the former president may have regretted that inaction ever since. 

Long before the trial, Engoron found Trump in contempt of court for discovery violations in the investigation that preceded the AG’s lawsuit. Last week, the judge found Trump, his family members and his business associates liable for a massive fraud and ordered the dissolution of Trump’s New York business empire, an action known as the “corporate death penalty.” 

Trump lashed out against him extensively at a makeshift press conference outside the courtroom, calling for Engoron to be “investigated for what he's done is undervaluing these properties.”

Minutes before entering the courtroom, the former president posted an all-caps tirade against “ROGUE, OUT OF CONTROL, TRUMP HATING JUDGE” on his platform Truth Social.

Trump habitually attacks the judges who rule against him, filing failed motions to recuse the judges presiding over his federal election-interference case and his hush-money prosecution in New York. 

Former U.S. Attorney Harry Litman, now the host of the Talking Feds podcast, said that Trump’s legal team has only itself to blame for the bench trial. 

Former federal prosecutor Mitchell Epner believed a jury trial likely would have been a "non-starter" in light of the New York Court of Appeals ruling in People v. Greenberg, but he believed that not pushing the issue was uncharacteristic for Trump's usual litigation style of contesting every issue.

"Trump's team [...] has been looking for ways to delay this case, and had they requested a jury trial — even though the trial court couldn't say 'yes' and the appellate division could not say 'yes' — there was a possibility that they could have been allowed to take a discretionary interlocutory appeal all the way up to the Court of Appeals in order to answer this question because trying this case twice makes no sense," said Epner, who's now a partner at Rottenberg Lipman Rich PC.

Since Trump's legal team "abandoned that issue," Epner noted, that was not possible.

Engoron will decide whether to issue an order disgorging hundreds of millions of dollars in allegedly ill-gotten gains — and barring him from ever serving as a director of a New York corporation.