Former President Donald Trump has complained repeatedly that the civil trial in New York, where he's accused of business fraud, does not have a jury -- and the fate of the case is up to Judge Arthur Engoron.
Trump's lawyers say the New York state law that state Attorney General Letitia James used to bring the complaint against him -- a civil statute giving the state attorney general wide latitude to go after "persistent fraud" in business -- did not allow him to request a jury trial.
But legal experts familiar with New York state law say that the question of whether Trump could have sought a jury trial is complicated. While Trump may not have been likely to succeed, experts said the question of a jury trial is something that Trump's lawyers could have tried to litigate.
"It's not entirely clear whether Trump would have been entitled to a jury trial under New York law -- that would depend on nuanced legal determinations about the nature of the remedy sought by the attorney general," said Elie Honig, a CNN senior legal analyst and former federal and New Jersey prosecutor. "But Trump's legal team absolutely could have requested a jury, litigated the issue, and then appealed had they lost."
At the start of the trial, Engoron noted that no parties in the case requested a jury trial and that the law mandated a "bench trial" decided by a judge.
"You have probably noticed or already read that this case has no jury," Engoron said. "Neither side asked for one and, 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 lawyers have pushed back on the notion that they failed to request a jury trial, as some have suggested based on paperwork filed in the case.
"Under 63 (12), which is what this case is, you don't have a right, an absolute right to a jury," Trump lawyer Alina Habba said on Fox News this week.
A Trump spokesperson said that the attorney general "filed this case under a consumer protection statute that denies the right to a jury."
"There was never an option to choose a jury trial," the spokesperson said. "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."
In other legal cases that the former president has faced, however, Trump and his attorneys have lamented that he is unable to receive a fair verdict from a jury in New York. After a New York jury found that Trump sexually abused E. Jean Carroll in 1996, attorney Joe Tacopina said that Trump is "firm in his belief" that he cannot get a fair trial in New York City "based on the jury pool."
Equitable relief
Under the Seventh Amendment of the Constitution, defendants have a right to a jury trial in civil cases seeking monetary damages.
Cases seeking "equitable relief" -- like this civil fraud case in New York -- don't hold the same constitutional protection, experts in New York law told CNN. Equitable relief can be a court injunction or the return of profits obtained illegally.
In Trump's case, the New York attorney general's office wants the former president to be essentially banned from doing business in New York -- asking a judge to, among other things, cancel the Trump Organization's corporate certificate and to impose a financial penalty for what they estimated is $250 million in ill-gotten gains -- all of which are examples of equitable relief.
Because of that, experts say, Engoron was not required to give Trump a jury trial. But it is unclear whether the judge could have allowed a jury trial had Trump's lawyers requested one, they noted.
David Schoen, an attorney on Trump's defense team in his second impeachment trial, said on "CNN This Morning" Tuesday that he would have tried to seek a jury trial if he was handling Trump's case, though he noted that in a previous 2011 case under the same statute, a judge found there was no right to a jury trial.
"A judge from same court said there is no right jury trial under NY executive law 63 (12), the section in which this is brought, because they say the remedies are generally equitable, not money damages. And historically there hasn't been a right for a jury trial for equitable damages, that is taking away the business licenses," Schoen said.
"But I would have filed a jury demand to litigate the issue, because here there are very severe monetary punishments at issue, potentially," he added. "And I think there's a strong argument to be made for the right to a jury trial."
Judge Engoron's previous decision against Trump
Part of the reason Trump is complaining about the judge deciding the trial is that Engoron has already ruled against him. Last week, Engoron found that Trump and his co-defendants were liable for "persistent and repeated fraud," one of multiple claims against Trump made by the attorney general.
Trump's lawyers on Wednesday filed a notice he will appeal the judge's ruling. The judge noted this week that the ruling on fraud was not one of the issues being litigated in the trial that got underway on Monday, because he already ruled on it. The trial is considering six additional claims against Trump, including allegations of falsifying business records, issuing false financial statements and insurance fraud.
The case has serious implications for Trump, his business and his brand: The attorney general is seeking to fine Trump $250 million and prohibit him from doing business in New York.
The trial is continuing on Thursday and is expected to last into December, the judge said this week. Trump attended the first three days of the trial voluntarily, but he returned to Florida on Wednesday.
History of the law used against Trump
The New York law that James is using in her claims against Trump, Executive Law 63 (12), was first created in the 1950s and has since been a mainstay in efforts by state prosecutors to ensure the New York commercial marketplace is free of misrepresentations and deception. The law allows the attorney general's office to investigate business or individuals who engage in "repeated fraudulent or illegal acts."
For decades, the attorney general's office has used the law to bring high-profile fraud cases -- including against Trump University and the Trump Foundation -- earning the state millions of dollars in settlements.
Karen Friedman Agnifilo, a CNN legal analyst and former prosecutor in the Manhattan district attorney's office, said that the law was a "rare but completely lawful" way to bring claims related to business fraud.
"Persistent fraud is a high bar, and thankfully not too many businesses conduct themselves this way," she said. "And if they do, they are normally criminally prosecuted."