What’s exceptional about the Trump contempt charge is not what Trump did

Donald Trump on Wednesday made a familiar move: He appealed a court ruling. This time it was a finding that he was in contempt of court. Two days earlier, a New York state judge, Arthur Engoron, found that Trump had failed to comply with a subpoena from New York Attorney General Letitia James’ office as part of her civil investigation into the Trump Organization’s business practices. Engoron ordered Trump to fulfill the subpoena’s demand for documents the AG is seeking and assessed a fine of $10,000 per day until he has complied to the court’s satisfaction.

I love it.

I love it for reasons that have little to do with politics, taxes or even Trump himself. I love it because, in litigating civil cases, I’ve observed that clients are rarely caught, let alone punished, for avoiding subpoenas or pretending to be unable to find documents they are supposed to disclose as part of the discovery process. Discovery takes place before a case goes to trial, and in it both sides are supposed to voluntarily share records with each other. When subpoenaed, a party must search their files and disclose records requested by the subpoena. 

Yet I’ve seen parties get away with sending their lawyer to court to say, “Well, the client says he looked for those documents, but…” and then insert any number of vague, largely unverifiable excuses, like something about a flood destroying the files (I’ve literally heard that) or a dog eating them (OK, I haven’t heard that — yet). I’ve observed litigants blow off discovery deadlines, and in some cases have suspected they flat-out concealed documents. They presumably do it because they expect to get away with it. Hey, the other side has no idea what’s in their files, so why not just say they looked and didn’t have it. 

Trump, it appears, is trying to do the same. Of course, Trump’s team argued that they did fully comply with the subpoena. They insisted they conducted a diligent search but that Trump didn’t have what they asked for.

And that all may be true. But the problem is, no one other than Trump, and those close to him, know for sure. Even his own lawyers can’t know for certain that their client isn’t hiding documents — especially when they are dealing with a client who notoriously doesn’t leave much of an electronic paper trail. So the attorney general turned to the judge to make the case that Trump’s team, rather than simply not possessing any documents, was actually stonewalling. 

The judge came down on her side, saying that the affirmation Trump’s counsel submitted about the search for the documents was “woefully inadequate.” He said that it “provided the Court with no basis to find that the search had been a thorough one or that it had been conducted in a good faith effort to provide these necessary records.”

This is not a case of Trump exceptionally bending the rules. It’s a case of Trump being exceptionally called out for what he did.  

The problem isn’t with the court’s rules of discovery, which are wide-ranging. The problem is that the rules are rarely enforced. In New York state courts, a party (like Trump) “shall…full[ly] disclos[e] all matter material and necessary in the prosecution or defense of” a lawsuit. The disclosure requirement is similarly broad in federal courts: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense …” Even if the information is not admissible as evidence in court, a party may still have to disclose it if it’s relevant. 

As liberal as the rules of discovery are, the rules don’t mean much if the other side doesn’t know they are being broken. Only the side with the documents — in this case, Trump — really knows what they have, what they’ve lost, and what they never had in the first place. And that’s the crack in the armor of the discovery system.

That’s where the court’s contempt power comes in — or should. Like most jurisdictions, New York courts have the ability to punish by fine, or even imprisonment, violations of court orders to comply with subpoenas. But while the court has the power to compel discovery, it’s rarely invoked by the lawyers in the dark.

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Trump, however, is facing a lawyer ready to seek punishment if she believes something’s being concealed. The judge agreed with her assessment. And not only that. The $10,000 daily fine he imposed is fantastic. In my experience, the court tells the wronged party to submit their lawyers’ billed hours and costs wasted in trying to get discovery from the side in contempt, so the court can calculate the penalty. Great. More work for the party who was wronged in the first place. 

It would be better if the judge just adopted the standard applied in the Trump case: a fine of $10,000 a day. If only it happened more often in civil litigation, and not just when the New York attorney general goes up against a former president.

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