Lucky Loser (part 2)

October 5, 2024

Previous | Next

By the early 1980s, Donald Trump had completed two successful building projects, the Grand Hyatt that opened in 1980, and the Trump Tower that opened in 1983. His reach far exceeded his grasp, however, since he had talked up so many other projects that he was unable to complete or even begin. Buettner and Craig summarize his situation:

Thanks to his father’s wealth and reputation, newspapers conferred an air of credibility on Donald’s every utterance. Those stories, and those that followed, began to establish an image of Donald Trump as a man of consequence and big ideas, and few took notice that most of his proposals went nowhere.

A frenzy of buying

Donald Trump’s image as a super builder made many banks willing to lend him big bucks for new projects. During the mid-1980s, he went on a buying spree with ample amounts of borrowed money. During this period, he:

  • partnered with Holiday Inns, Inc. to build his first Atlantic City casino, Harrah’s at Trump Plaza (soon renamed Trump Plaza Hotel and Casino; later he borrowed $250 million to acquire sole ownership)
  • bought a second casino across the street and renamed it Trump Castle
  • bought the New Jersey Generals football team in the new United States Football League
  • bought the West Side Yards, the largest undeveloped piece of land in Manhattan; (he had previously acquired an option to buy it from the bankrupt Penn Central, but allowed it to expire; now he bought it from its current owner)
  • bought the Mar-a-Lago beach property in Palm Beach, Florida
  • partnered with Lee Iacocca to buy an unfinished condominium project across Lake Worth from Mar-a-Lago; he renamed it Trump Plaza of the Palm Beaches
  • bought the Hotel St. Moritz in New York City from Harry Helmsley
  • bought the New York Foundling Hospital from the Archdiocese of New York, intending to replace it with an apartment building

By 1986, Trump was rich in assets but deep in debt.

He had excelled at convincing lenders to fund a remarkable number of large acquisitions without requiring him to put in any of his own money…[H]e had taken on, in less than four years, more than $1 billion in debt, much of it at high interest rates and personally guaranteed by him.

Still the acquisitions continued. In 1987 and 1988, he:

  • borrowed $220 million to build condominiums for Trump Palace, on the site of the Foundling Hospital
  • bought a controlling interest in the Taj Mahal casino from Resorts International, and borrowed $675 million to complete its construction
  • bought the Plaza Hotel in New York City
  • bought the Boston-New York-Washington shuttle service from Eastern Airlines

The result was $1.7 billion in additional debt. But according to the authors, “He had performed little due diligence on the profit potential of anything he bought.” Usually uninterested in detailed cost-benefit analysis, Trump tended to underestimate development costs and/or overestimate revenue, winding up with a portfolio of assets with operating losses.

Small gains and big losses

As the owner of a team in a struggling summer football league, Donald was noted for overspending and combative litigation. He convinced other owners to pin their hopes on competing with the NFL to play and televise games during the fall season. He had his lawyer, the notorious and soon-to-be disbarred Roy Cohn, sue the NFL for maintaining a monopoly. The jury did find a monopoly, but no specific anti-competitive practices to justify more than one dollar in damages. The new league’s costs exceeded its revenues, and it went out of business.

Trump’s plans for the West Side Yards stalled. He could not find a major tenant to anchor the complex, and he fought with the city over rezoning and tax abatement.

In Atlantic City, the revenue from his casinos failed to cover his expenses, considering his very large loan payments. His only profitable businesses remained his first two projects, the Grand Hyatt and Trump Tower.

Trump did make some money playing the stock market, buying stocks with borrowed money and selling them at a profit. The word that he was buying a stock would help push its price up, especially because other buyers thought he might be interested in taking over the company. Sometimes the executives of a company would buy back his stock at a higher price just to avoid a possible takeover. Some of Trump’s stock dealing got him in trouble with federal regulators, but he made more on the deals than he paid in fines.

In 1987, Trump published The Art of the Deal, boasting of his accomplishments and his business savvy. His “co-author,” Tony Schwartz, who did the actual writing, delivered a flattering portrait of his subject, but he noted at the time that a more truthful description would reveal him to be “just hateful or, worse yet, a one-dimensional blowhard.” Schwartz has been one of Trump’s severest critics ever since.

Trump’s tax return for that same year is revealing:

Trump’s core businesses reported a negative income of $45.4 million…He reported $25.4 million in short-term capital gains, mostly, if not entirely, from the stocks he sold after letting investors believe he might take over the company.

A couple of points about tax law are helpful here. Trump organized his businesses as legal partnerships, which meant that the profits or losses showed up on his personal tax return. Even successful real estate investments sometimes produce losses for tax purposes, at least in the short run. That’s because owners can depreciate a property, spreading its cost over many years. Reported costs easily exceed revenues in the early years, before potential income is fully realized. But Trump’s losses went far beyond that. His revenues remained below costs year after year, making entire projects unprofitable.

The truth was that Trump was hemorrhaging cash, largely from massive interest payments. But it was all other people’s cash. His entire operation, and his lifestyle, was a float. He was living, and creating a phony image, on borrowed money.

Some observers began to see that Trump’s business success was highly overrated. Financial analyst Marvin Roffman publicly stated his view that the revenue from the Taj Mahal casino could not possibly make up for its debt payments. Trump’s response was to get Roffman fired from the brokerage firm he worked for by threatening a lawsuit against the firm. (Roffman later sued for defamation, and Trump settled with him.)

In 1989, the expenses of Trump’s businesses exceeded revenue by $36.1 million. Soon he was trying to stop the negative cash flow by withholding millions from contractors and cutting staffing at the casinos. In June of 1990, he failed to make $73 million in debt payments. At that point, the bankers stepped in. A front-page story in the Wall Street Journal was headlined, “Shaky Empire: Trump’s Bankers Join to Seek Restructuring of Developer’s Assets.” The bankers forced him to sell losing properties and reduce his spending. His “allowance” for personal expenses would be a mere $450,000 a month ($5.4 million a year). This was less than he was accustomed to spending on Mar-a-Lago alone, but it was generous enough to maintain his popular image as a financial success.

A struggle for solvency

In the 1990s, Donald Trump had to sell one property after another to cut his losses and pay off his creditors. He sold the Plaza Hotel for $100 million less than he had borrowed to buy it. He turned over the unsold units in the failing Trump Palace to the bank. He gave up control of the West Side Yards to a Hong Kong developer, leaving his future returns to the discretion of the new owners. (This deal would provide an unexpected windfall many years later.) He even had to sell what had been his first success, the Grand Hyatt hotel. He did manage to hold on to the places where he resided, Trump Tower and Mar-a-Lago. He converted Mar-a-Lago to a private club, generating income from expensive memberships.

An interesting question is how Donald managed to avoid personal bankruptcy while so many of his businesses incurred operating and capital losses. Part of the answer is that he could cover operating losses with borrowed money, as long as banks would keep making new loans. And by putting very little of his own money into his projects, he could limit the personal damage from capital losses. His businesses could go bankrupt while he remained personally solvent.

In 1995, Trump turned his casino operation into his first public company, Trump Hotels and Casino Resorts. He made millions on the sale of public shares. He saddled the new company with debts on borrowed money that either had been used or would be used to pay off his previous loans. That made the public company a losing business with a falling stock price, but those losses were borne by the shareholders. (The company would file for bankruptcy three times beginning in 2004. All its properties would eventually be closed and sold.)

By 1996, Trump:

…had finally cleared the last of the loans from banks that had threatened to force him into personal bankruptcy. He had in the prior decade recorded more than $1.1 billion in business losses on his tax returns, a failure of historical proportions.

That raises another question. Did Donald Trump ever invest $1.1 billion of his own money? And if not, how did he claim that much in losses? In theory, if he sold a building for less than he borrowed to buy it, that was his loss. At least, it would be if he fully repaid the loan out of personal funds. But if the bank accepted the sale proceeds in lieu of full repayment, that would shift some of his loss to the bank. (For tax purposes, his loss would be offset by a form of taxable income known as cancellation of debt income.) However, by using an unusual—and possibly illegal—tax maneuver, Trump apparently got away with claiming excess losses for himself. Those losses enabled him to pay zero taxes for many years.

Trump was still making new acquisitions, but with fewer lenders willing to lend, he had to reduce the scale of his projects. When he partnered with the South Korean conglomerate Daewoo to build Trump World Tower across the street from the UN, he invested much less than his partner and had to settle for a smaller share of the profits. He also started investing in golf courses, which cost a lot less than building hotels and casinos. But he continued to claim, “I’m the biggest in real estate in New York, and I’m the biggest in the gaming industry.”

Generational transfers

Another big factor in Trump’s financial survival was the large amounts he received from his father’s estate. Ever since they were children, Fred Trump had been giving Donald and his siblings annual tax-free gifts. At first, he limited them to several thousand dollars a year per child, since larger gifts would be recorded and subjected to estate taxes when his estate was settled.

When Donald got into financial trouble in the 1990s, Fred transferred larger amounts to his children through a fraudulent scheme that evaded gift and estate taxes. The family created companies owned by the children, whose sole purpose was to purchase millions of dollars of goods and materials for Fred’s business and sell them to him at a substantial markup. The children made a profit, but it was subject to income tax instead of the higher estate tax. Donald did not pay income taxes either, as long as his income was offset by his overstated capital losses.

Fred Trump retained ownership of his own properties until 1995, when his children got him to give his son Robert power of attorney. “Donald and his siblings could begin taking ownership of their father’s massive cash machine, and Fred could do nothing to stop them.” They immediately starting transferring his properties to a grantor retained annuity trust (GRAT). This type of trust allows assets to pass to heirs without estate taxes, as long as the heirs are buying the assets at fair market value. Buettner and Craig reckon that the assets were appraised for only about 5% of their market value, resulting in a large windfall with minimal taxes. When the transfers were completed a couple years later, “Donald Trump’s net worth instantly increased by tens of millions of dollars,” and his “share of profits from his father’s company averaged about $6 million a year going forward.

Thanks to his father, he continued to be a rich man despite his own business failures. And more good luck was on the way.

Continued


Lucky Loser

October 1, 2024

Previous | Next

Russ Buettner and Susanne Craig. Lucky Loser: How Donald Trump Squandered His Father’s Fortune and Created the Illusion of Success. New York: Penguin, 2024.

This is the most comprehensive and thoroughly documented account of Donald Trump’s financial history, written by two New York Times journalists. The general storyline is that Trump managed to fail as a real estate developer despite the help of his father Fred, a successful New York builder with a large portfolio of properties. But he managed to succeed in creating a public image as a great builder, with the help of a “reality television” show, a large inheritance, and other strokes of good fortune. For a time that image enabled him to make money just by licensing his name, but he eventually cheapened it by attaching it to enterprises of dubious value. The authors find “no evidence that in fifty years of labor Donald Trump added to his lucky fortunes.” They conclude that he would have done better by taking the money he received from his father and investing it in the stock market instead of in his own projects.

Although I think “lucky loser” is a fair description, it does not cover everything the book reveals about its subject. The adjective “crooked” belongs in there too, because of the part that Trump’s dishonesty has played in his financial fortunes. The authors cite the “dubious maneuver” of giving properties “a low value when dealing with tax authorities and a high value when trying to extract money from banks and buyers.” Another bad habit has been fabricating or exaggerating his accomplishments, while denying and covering up his failings. Of course, “crooked” is a word that Trump likes to use for his adversaries, but many observers have suggested that he projects some of his own weaknesses and insecurities when he chooses his epithets.

Fred Trump

The natural starting point for describing Donald Trump’s good fortune is to say that he had a wealthy businessman for a father. Fred Trump was already making money as a builder when the National Housing Act of 1934 helped turn the Great Depression into a “Golden Age for home builders.” The new FHA allowed thirty-year mortgage loans covering 80% of a home’s value, guaranteed by the government. During World War II, Title VI, Section 608 of the Act encouraged construction of apartments near factories and military bases by offering low-interest loans covering 90% of construction costs. Fred took full advantage of these opportunities, notably by building the largest private housing development in Brooklyn, Shore Haven.

By the 1950s, however, the public was learning how developers had been scamming the system. They were making quick profits by taking out loans that exceeded the cost of production and pocketing the difference. Then if renters couldn’t or wouldn’t pay the high rents needed to cover the large loan payments, the developers often defaulted on their loans, to the detriment of the tenants and taxpayers. Although Fred Trump took his own Shore Haven into default, he was able to expand his real estate empire by buying properties at auction when other builders defaulted. Despite his reliance on government-backed loans and weak regulation, Fred liked to portray himself as a self-made man. He claimed in a full-page newspaper ad,  “Shore-Haven is a new monument to the American spirit of free enterprise. The project was conceived, planned, executed by Fred C. Trump, acting as a free and rugged individualist to meet the basic need for human shelter.”

The authors estimate that over the years, Donald Trump would receive “the equivalent of more than $400 million from his father” in gifts, loans—often not repaid—and bequests. To this day, Trump denies receiving more than a small fraction of that amount.

Education and exaggeration

The book describes the young Donald as a “dominant personality,” but with “a reputation for misbehaving.” His father sent him to New York Military Academy at age 13 in the hope of teaching him more discipline. His tendency to embellish his own accomplishments seems to have developed early on. To pose for his yearbook photo, he borrowed the dress jacket from another student who had earned more medals than he had. (As a military school graduate myself, I find that disgustingly dishonorable.) Later he would claim that he was at the “top of the military heap” at the academy, but five pages of awards in the commencement program do not include his name. His students did dub him the class “Ladies Man”; that much seemed to be true.

Trump went on to study business at Fordham University, where he is remembered for cutting class on nice days to play golf. From there he transferred to the Wharton School of Finance and Commerce at the University of Pennsylvania. He would later claim to have graduated at the head of his class, but the commencement program didn’t list him as even making the dean’s list.

What he did do was graduate in the late 1960s, “just as his father was prepared to begin passing along a business that would be worth a billion dollars.” The authors call this “the luckiest stroke of a life filled with big breaks.” His father favored Donald over his older brother Freddy, who disappointed his father by wanting to be an airline pilot and developing a drinking problem.

The Commodore/Grand Hyatt Hotel

The Commodore was a run-down hotel that Donald Trump acquired from the bankrupt Penn Central railroad. He proposed to renovate it, relying on his father’s close ties to New York Mayor Abraham Beame to help him get a big break on city taxes. The Wall Street Journal called this “the tax deal of the century.” The tax break attracted a partner, the Pritzker family, who owned the Hyatt Hotels.

Donald brought to the Commodore renovation what he usually would bring to his projects, a grandiose plan and an underestimate of costs. He then “cut costs in ways that created problems later.”  For example, “Rather than installing the typical metal ductwork to draw air from the guests’ bathrooms up to the roof, Trump had shafts built of drywall, which leaked and made balancing the system impossible.” In the end, the renovation cost twice as much as he estimated.

The authors describe Donald’s approach to development this way:

With no real estate or financial staff at his disposal, Donald’s assessment of a potential opportunity started and stopped at the end of his nose. There would be no deliberative planning and very little in the way of an analysis of risks or potential return on investment. Every entrepreneur relies at some level on instinct, typically after running the numbers. Donald Trump went straight to instinct. The only brakes on this endless energy train would be whether he could leverage his father’s wealth to borrow tens of millions of dollars.

In this case, Donald was saved by two things. He could borrow from his father to pay excess costs. And the economic recovery in downtown New York brought back visitors and raised hotel occupancy and rates. The new Commodore—now the Grand Hyatt—did well.

Trump Tower

The first project that Donald Trump built from the ground up was Trump Tower, on the site of the old Bonwit Teller Building. He wanted a tax abatement for this project too, but that proved more difficult. The law he wanted to apply had been written to encourage apartment construction and keep residents in the city. But according to new guidelines, the tax break only applied to replacements for “functionally obsolete” buildings, and city officials ruled that Bonwit Teller did not qualify. Trump sued, eventually winning his case on the grounds that the guidelines in question had not actually been written into the law.

Once again, the project had extravagant designs, cost overruns, and attempts at cost-cutting. Residents of expensive apartments were surprised to find “cheap cabinets, Formica countertops, fake marble, parquet floor tiles, and low-end kitchen appliances.” But once again, favorable market conditions helped, and the project became one of Trump’s few profitable construction projects.

Building an image

Donald Trump’s grandiose proposals, lavish lifestyle and zealous pursuit of publicity were already giving him a reputation far beyond his actual accomplishments. Even before construction had started on any of his buildings, a New York Times reporter described him this way:

He is tall, lean and blond, with dazzling white teeth, and he looks ever so much like Robert Redford…He dates slinky fashion models, belongs to the most elegant clubs and, at only 30 years of age, estimates that he is worth “more than $200 million.”

In addition to the plan for the Commodore, the article cited two other projects, a Manhattan convention center and a huge complex in the West Side Yards of the bankrupt Penn Central, imagined to include 14,500 apartments and the tallest building in the world. Trump would never be able to build either of those projects. And as for the $200 million, that was Fred’s worth, not Donald’s. In 1982, the Forbes list of the 400 wealthiest Americans included Donald by saying that he shared the family fortune with his father. Actually, Donald’s ownership of real estate acquired by his father was limited to a few million dollars in apartments that his father had given him.  Four years later, Forbes dropped Fred from the listings and mistakenly attributed full control to Donald. CBS’s 60 Minutes compounded the error by declaring Donald a billionaire. Then Lifestyles of the Rich and Famous doubled that by estimating his wealth at two billion.

By this time, Donald Trump had those two successful projects, the Grand Hyatt and Trump Tower. But his fame already far exceeded his actual accomplishments, and that would become even truer as his losing projects began to outnumber his winning ones.

Continued


Trump’s Dilemma: Debate or Just Deceive?

September 12, 2024

Previous | Next

It matters who won or lost this week’s presidential debate, but it also matters how they won or lost. In their post-debate analysis, many commentators focused on issues of style or tactics. Kamala Harris looked more presidential, they say, and she managed to goad Donald Trump into making some silly assertions, like claiming that “people don’t go to her rallies; there’s no reason to go. And the people who do go she’s busing them in and paying them to be there.”

What about substance? Who was more effective in persuading voters to support their policy proposals? Here Trump has a big handicap, since he has trouble debating ideas on their merits. Doing so effectively requires some command of the facts. But Trump does not so much assimilate facts as try to ignore them. He can get away with this when he is ranting within his MAGA bubble in campaign rallies or on right-wing media. In a debate setting, he can only hope that his opponent—and the moderators—are either too timid or too unprepared to call out his distortions of reality. Vice President Harris was neither.

Here are a few examples of the deceptions Trump presented in lieu of reasoned, fact-based arguments. Here I draw on the excellent fact-checking provided by the Washington Post.

On the economy, both candidates expressed concern about high prices, but only Harris had specific policy proposals to control consumer costs, such as the high cost of housing. Trump preferred to devote his time to blowing the problem out of proportion and placing the blame for it entirely on his opponent. He claimed that the recent inflation is “probably the worst in our nation’s history,” that his administration had “the greatest economy” of all time, and that the Biden-Harris administration “destroyed the economy.” In fact, inflation was higher in 1946, 1979 and 1980; the Lyndon Johnson and Bill Clinton administrations had stronger economies than his; and the Biden-Harris economy is also doing well by most economic measures. The rate of growth and job creation has been high, unemployment has been low, and the rate of inflation has come back down.

Trump also refused to acknowledge that his own tariff proposal would increase costs for consumers. He claimed, contrary to what economics teaches, that his tariff will be paid for by the countries that export goods to the United States. In fact, tariffs are taxes on importers, who usually pass them on to consumers. Cost estimates vary, but generally indicate that the tariffs will cost the average family several thousand dollars a year. A tariff is also a regressive tax, hitting low-income households the hardest.

On immigration, Trump claimed that 21 million immigrants have entered the country in the past four years, while the true number is closer to 5 million. He said that “they’re at the highest level of criminality,” when immigrants actually have a lower rate of crime than the U.S.-born population. Undocumented immigrants have an especially low rate, because they know that if they are arrested they can be deported. Trump described “millions of people pouring into our country from prisons and jails, from mental institutions and insane asylums,” so many that “crime is down all over the world except here.” These are total fabrications, even before we get to the immigrant cat eaters of Springfield. He also asserted, without evidence, that Democrats are deliberately letting undocumented immigrants into the country and then trying to get them to vote illegally. That’s one of the assertions he makes to support the Big Lie that the 2020 election was stolen. He repeated such claims over and over instead of debating the bipartisan immigration bill that Biden and Harris supported but he effectively killed.

On abortion, Trump tried to defend his successful effort to get the Supreme Court to overturn Roe v. Wade. Here he conveniently manufactured a consensus that doesnot exist: “Every legal scholar, every Democrat, every Republican, liberal, conservative, they all wanted this issue to be brought back to the states where the people could vote.” He also falsely accused Democrats of supporting late-term abortion and even execution of newborns. Harris supports the Roe standard, which calls for unrestricted abortion rights only during the first trimester, when about 90% of abortions occur. Trump refused to say whether he would sign or veto a federal ban on abortion.

In response to a question on climate change, Trump had no proposals to do anything about it. Instead, he went on the attack, saying, “If she won the election, the day after that election, they’ll go back to destroying our country, and oil will be dead, fossil fuel will be dead.” In fact, Biden and Harris promote both fossil fuels and cleaner energy in the short term, and production of both have increased under their administration.

On the war in Ukraine, Trump claimed that he could end it quickly, but refused to say whether he wanted Ukraine to win. He implied that the U.S. is already spending too much on the war, by stating that we have provided more aid to Ukraine than European countries have. That’s not true either.

Some may dismiss these falsehoods by claiming that all politicians lie, and that both sides are equally guilty. However, factchecking has turned up only a few problems with Harris’s debate positions. She did try to downplay her former opposition to fracking. She did take a couple of Trump’s quotations out of context, as when she said, “It is well known that he said of Putin that he can do whatever the hell he wants and go into Ukraine.” Trump was not talking specifically about Ukraine, but about a warning to a NATO country that we would not defend them if they did not increase their financial contribution to NATO.

Harris’s own positions and policy proposals deserve scrutiny and debate. But fruitful debate becomes impossible when the other candidate would rather rage against imaginary demons than engage with the real issues. Trump’s failure to propose an alternative to Obamacare after vilifying it for nine years shows that he prefers outrage to constructive governing.

Stretching the truth a little within a debate is one thing. Substituting outlandish claims for fact-based debate is something else. That defeats the whole purpose of debate, which is to inform the public of the candidates’ proposals and their arguments for them. Donald Trump displays such a flagrant disregard for truth that one must wonder if he really believes what he is saying. If he does, he is deluded. If he does not, then he is habitually dishonest. Neither trait is easy to change, so an improved performance by Trump in some future debate seems unlikely. Either should be disqualifying for the presidency.


The NY Criminal Case against Donald Trump

April 24, 2024

Previous | Next

The criminal case against Donald Trump in the state of New York is a little complicated, but not so confusing that most people cannot follow it. The opening statements by the prosecution and defense lay out the issues rather clearly.

The prosecution’s opening statement

The prosecution explains that former President Donald Trump is indicted on 34 counts of falsifying business records. The Trump organization allegedly made 34 false entries on its books to cover up hush-money payments made by Michael Cohen to Stormy Daniels on behalf of Donald Trump.

The indictment claims that the records were falsified “with intent to defraud and intent to commit or conceal another crime and to aid and conceal the commission thereof…” The prosecution promises to show that another crime was indeed involved.

New York election law makes it illegal to conspire to promote or prevent the election of any candidate to office by unlawful means. The prosecution alleges that Donald Trump conspired with Michael Cohen and David Peck to “influence the presidential election by concealing negative information about Mr. Trump in order to help him get elected.” The unlawful means of doing so were the secret payments to Stormy Daniels and others to buy their silence. Although the opening statement refers to these as “illegal expenditures,” I did not see where it said exactly what made them illegal. I assume that at least one reason is that they were not  properly reported as campaign contributions. Perhaps the prosecutors are leaving it to the judge to instruct the jury on the relevant law. Remember that Michael Cohen has already been prosecuted and imprisoned at the federal level for making an unlawful campaign contribution by paying Daniels.

The prosecution also maintains that the conspirators went to a lot of trouble to cover up the $130,000 payment to Stormy Daniels. Cohen borrowed the money from a bank and then funneled it through a shell company to pay Daniels. He and Allen Weisselberg, Trump’s Chief Financial Officer, arranged for Cohen to be paid back at least twice that amount, since he would have to pay federal, state and local taxes when he falsely reported the reimbursement as income. The actual calculation was $130,000 + $50,000 for an unrelated reimbursement = $180,000; then 2 times that = $360,000; then an additional $60,000 for an end-of-year bonus, for a total payment of $420,000. This was then divided into 12 monthly payments of $35,000 and billed as monthly legal services. Trump allegedly made most of the payments out of his own bank account. “The defendant said in his business records that he was paying Cohen for legal services pursuant to a retainer agreement. But, those were lies. There was no retainer agreement.”

The prosecution summarizes that “this was a planned, coordinated long-running conspiracy to influence the 2016 election, to help Donald Trump get elected, through illegal expenditures, to silence people who had something bad to say about his behavior, using doctored corporate records and bank forms to conceal those payments along the way. It was election fraud. Pure and simple.”

The defense’s opening statement

The defense complains that the prosecutors talk about conspiracy without actually charging Trump with it. That is technically true. But they have charged him with falsifying business records in the first degree (a felony), and the prosecution needs to prove the criminal conspiracy to support that charge.

The defense denies that the $420,000 paid to Michael Cohen has anything to do with the $130,000 Cohen paid to Stormy Daniels. Trump is too frugal to overpay a reimbursement that way. The $420,000 is just what the organization says it is, a payment to Cohen for legal services. Trump had little involvement in it, since he only signed checks prepared for him by lower-level employees. “President Trump…had nothing to do with the invoice, with the check being generated, or with the entry on the ledger.”

The defense maintains that President Trump committed no other crimes either. “There is nothing wrong with trying to influence an election. It’s called democracy.” Also, “Entering into a non-disclosure agreement is perfectly legal…You will learn that companies do that all the time with some regularity.” The defense does not explain why Michael Cohen went to jail if what he did was perfectly legal.

Finally, the defense portrays Michael Cohen and Stormy Daniels as liars with axes to grind, so their testimony should be disregarded.

What to look for

As always in a criminal case, the burden of proof is entirely on the prosecution.  The evidence must prove beyond a reasonable doubt that Trump participated in a criminal conspiracy by encouraging and approving illegal payments. It must also prove that he participated in the falsification of records by signing checks that he knew were not the compensation for legal fees they were claimed to be. Michael Cohen will no doubt testify to Trump’s involvement in these matters. Because the defense questions his credibility, the outcome of the case may depend on what corroborating evidence the prosecution can present.

The two sides disagree on the law as well as the facts—in particular, whether buying someone’s silence to protect a political candidate is legal. Look for the judge to clarify New York law in that respect in his instructions to the jury.


The Fraud Factory

February 19, 2024

Previous | Next

Last week, Judge Arthur Engoron issued his ruling in the New York civil fraud case against the Trump organization and its executives. This is his succinct summary of the case:

Donald Trump and entities he controls own many valuable properties, including office buildings, hotels, and golf courses. Acquiring and developing such properties required huge amounts of cash. Accordingly, the entities borrowed from banks and other lenders. The lenders required personal guarantees from Donald Trump, which were based on statements of financial condition compiled by accountants that Donald Trump engaged. The accountants created these “compilations” based on data submitted by the Trump entities. In order to borrow more and at lower rates, defendants submitted blatantly false financial data to the accountants, resulting in fraudulent financial statements.

The complaint by the New York Attorney General accused the defendants of making false statements in a business, intentionally falsifying business records, conspiring to falsify business records, intentionally issuing a false financial statement, conspiring to issue a false financial statement, intentionally engaging in insurance fraud, and conspiring to engage in insurance fraud.

By exaggerating asset values and net worth, the defendants made the organization look like a better risk than it was, helping it to obtain loans and insurance contracts on more favorable terms. Although the loans were repaid, the fraud consisted of not compensating the lenders for the risks they were really taking.

The defendants

The defendants included both the collection of companies branded “the Trump Organization” and the Donald J. Trump Revocable Trust, which holds the assets of the Trump Organization in trust for Donald Trump, the sole beneficiary. They also included the individuals Donald Trump, Donald Trump, Jr., Eric Trump, Allen Weisselberg and Jeffrey McConney.

Donald Trump was both Chairman and President of the Trump Organization until he became President of the United States in 2017. His son, Donald Trump, Jr., served as Executive Vice President from 2011 until 2017, when he and his brother Eric became co-CEOs.

Allen Weisselberg was Chief Financial Officer of the Trump Organization from 2002 to 2022. He was placed on leave “after pleading guilty to 15 criminal counts of tax fraud and falsification of business records at the Trump Organization.”

Jeffrey McConney was Controller of the Trump Organization from the early 2000s until 2023. He maintained the spreadsheets with the itemized property valuations. These were then compiled by the Mazars accounting firm and presented in the annual Statements of Financial Condition (SFCs). The SFCs were then approved by Allen Weisselberg and whoever was in charge at the time, either Donald Trump or co-CEOs Donald, Jr. and Eric.

Michael Cohen was not a defendant because he was now testifying for the state, but he had been an executive V.P. and special counsel to Donald Trump. He testified that Trump asked him to help prepare the SFCs and their supporting valuations beginning in 2012.

Specifically, Cohen affirmed: “I was tasked by Mr. Trump to increase the total assets based upon a number that he arbitrarily selected[,] and my responsibility[,] along with Allen Weisselberg predominantly[,] was to reverse engineer the various different asset classes, increase those assets in order to achieve the number that Mr. Trump had tasked us.”

Cohen said that each reverse engineering process would take several days, and that Weisselberg relied on McConney to assist him in adding value to the numbers on the supporting data for the SFCs… Cohen further made clear that Donald Trump had to approve the final numbers before they went to Mazars to be used in the compilations.

According to Cohen, Trump was motivated not only by a desire to qualify for loans at the most favorable rates, but to boost his net worth to place as high as possible in the Forbes ranking of the richest Americans.

The overvalued properties

Controller McConney understood that the financial statements were required to conform to Generally Accepted Accounting Principles (GAAP). These defined the “estimated current value” of a property as “the amount at which the item could be exchanged between a buyer and a seller, each of whom is well informed and willing, and neither of whom is compelled to buy or sell.” Nevertheless, he and his superiors approved many valuations that violated those standards. For example:

When valuing unsold units in Trump Park Avenue for Donald Trump’s SFCs, McConney used offering plan prices from an internal Trump International Realty spreadsheet, while wholly disregarding “current market values” listed on the exact same spreadsheet. Moreover, McConney “intentionally removed” the current market values column from the spreadsheet before forwarding it to Donald Bender at Mazars, despite McConney’s knowledge and representation that he understood that the SFCs had to reflect the estimated current value.

The defendants used a variety of other methods to inflate the value of the Trump Organization’s assets. The most blatant was simply to overstate the size of the property, which they did for Trump’s Triplex apartment. The valued it as if it were 30,000 square feet instead of its actual 10,996 square feet, which added anywhere from $114 million to $207 million depending on market conditions in a given year. They continued to use the inflated numbers for a time even after journalists from Forbes called attention to the discrepancy.

For some properties, the defendants overstated the number of residential units they had a right to build on the property. For Briarcliff, they claimed 71 instead of the actual 31, more than doubling the appraised value.

Instead of using current market value, some valuations used projections of future value based on dubious assumptions.

From 2011-2014, when valuing a plot of land upon which seven mansions could be built in Bedford [Trump Seven Springs], McConney relied on valuations provided by Eric Trump, who advised McConney to value the seven-mansion development at $161 million on the 2012 SFC. This valuation assumed a host of future events that had not—and as hindsight has shown, would not—occur, including that the Trump Organization had received legal permission to develop the lots, that the mansions were already built and available for sale, and that there would be no construction or development costs associated with building the mansions.

For a piece of land adjacent to the Aberdeen golf course in Scotland, the defendants both exaggerated the number of residences they were permitted to build by a factor of five, and also assumed that the residences had already been built, and at zero cost.

For an income-generating property like 40 Wall Street, where the value was calculated by dividing the net operating income by the capitalization rate, they could inflate the value either by exaggerating the net operating income or understating the capitalization rate. Apparently, they did both.

The value of the Mar-a-Lago club was limited because Trump had signed a “Deed of Conservation and Preservation” in 1995. There he gave up the right to develop the property as a single-family residence and received a tax break in return. That effectively took it off the residential market. No problem—the defendants simply ignored that restriction and based their valuation on the premise that it could be sold as a private residence.

The defense

The overvaluations resulted in large discrepancies between the company’s financial statements and the property appraisals by accounting firms. When confronted with such discrepancies at trial, defendants were generally vague about who had arrived at the higher valuation and with what justification.

When McConney was asked why Mar-a-Lago was valued as a private residence instead the social club it was, he said he couldn’t remember. In other cases, he claimed that he had gotten his numbers from Eric Trump, but Eric testified that he paid little attention to valuations, since “I am a construction guy.”

Although Weissenberg was Chief Financial Officer, he was not a CPA. He had so little knowledge of GAAP that he couldn’t say what the term “estimated current value” meant. Yet, “each year, Weissenberg represented to Mazars that the SFCs were presented in conformity with GAAP and that assets in the SFCs were stated at their estimated current value.” He testified, “I certainly am not one to value a property. I have no idea what properties are worth.”

Donald Trump, Jr. approved financial statements in his roles of co-CEO and trustee of the Donald J. Trump Revocable Trust “despite having no knowledge of the requirements of GAAP, never having been employed in a position that required him to apply GAAP, and never having received any training on applying GAAP.”

What Judge Engoron calls “the crux of the defense” was that:

…defendants relied on their accountants, mainly Mazars, but sometimes Whitley Penn, to make sure that the SFCs were accurate, and that responsibility for any misrepresentations lies with the accountants, not defendants. Donald Trump, Jr. and Eric Trump testified several times that they would have relied on their accountants to find any errors in the SFCs’ supporting data.

Engoron found this claim unreasonable, since these accountants were hired only to be “compilers,” not appraisers, taking the numbers provided by the defendants and organizing them into a single document. The Trump organization was not supposed to rely on them for the valuations; it was the other way around. Trump executives were obligated to represent the financial statements as complete and accurate, and they did so. When the defendants did obtain appraisals on specific properties, such as the $5.5 million appraisal of the Seven Springs property by Cushman & Wakefield, they often ignored or drastically revised them, in that particular case raising the value to $161 million! To say that they “relied on their accountants” is a bit disingenuous.

For his part, Donald Trump mostly claimed that the properties were so great that they were worth even more than the valuations submitted on the SFCs. Overall, the court’s decision gives us an image of defendants playing fast and loose with the numbers because their greed exceeded their competence and their honesty.

The ruling

The organizations and their executives were found liable for using false statements in business, conspiring to falsify business records, and conspiring to engage in insurance fraud. The named individuals Donald Trump, Donald Trump, Jr., Eric Trump, Allen Weisselberg, and Jeffrey McConney were also found liable for intentionally falsifying business records, intentionally issuing a false financial statement, and conspiring to issue a false financial statement. Only Weisselberg and McConney were found liable for intentionally engaging in insurance fraud.

The court ordered the defendants who had personally profited from fraud to disgorge the “ill-gotten gains” they received. Almost all the profits accrued to Donald Trump himself. The state contracted with a highly qualified expert witness, Michiel McCarty, to compare what the organization actually paid in interest with an estimate what it would have had to pay without the inflated assets. In addition, the court ruled that the organization profited from certain real estate deals that could not have been made without the use of false SFCs, so those gains were ill-gotten as well. The court found Donald Trump liable for $354.9 million and his two sons liable for $4 million each. The interest that accrued since the frauds were committed added another $98.6 million.

The court banned the defendants from serving as directors or officers of a New York company for varying lengths of time: Trump, Weisselberg and McConney for three years, and Trump’s sons for two years. In addition, Weisselberg and McConney were banned for life from performing a financial control function in a New York company.

Comment

The ruling in this civil fraud case adds to Donald Trump’s record of fraud, which includes defrauding students of Trump University and defrauding donors to the Trump Foundations by spending some of the donated money for his own benefit. Next month he is scheduled to go on trial for election fraud because of his hush-money payment to conceal an extramarital affair from the voters (which also involved alleged falsification of business records). Trump’s response to all this is almost never to address the specific allegations. He simply claims that every lawsuit and indictment is part of a conspiracy by President Biden and the “radical-left Democrats” to interfere with the 2024 election. That excuse is getting a little stale.

From time to time in US history, we have elected presidents who turned out to be crooked; Warren Harding and Richard Nixon come to mind. This year, the Republican Party has an opportunity to achieve something really special, the nomination of a presidential candidate who is already a certified fraud. How low can we go?