June 18, 2024

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The First Amendment Threat in the Trump Civil Case

1 min read

Can the government penalize someone for an inaccurate statement that wasn’t made with bad intent, recklessness or negligence, and that didn’t cause concrete harm to an identifiable third party? That’s the First Amendment question underlying the civil-fraud suit against Donald Trump. The stakes are high for the former president—and for the rest of us.

New York’s Attorney Gen. Letitia James has charged Mr. Trump under the state’s Executive Law for allegedly overstating his business’s real-estate assets. The statute, however, has long been constitutionally suspect. Although historically only courts or their grand juries could issue subpoenas, the law grants the state’s attorney general a subpoena power to fish through private documents. Worse, the statute authorizes Ms. James to bring a civil-fraud suit for inaccurate statements discovered in the process.

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2023-11-01 18:16:00

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