Professor Greg Germain of Syracuse University of Law told Newsweek that Trump may be able to convince an appeal court that James had not proven he had committed fraud.
"The traditional job of the attorney general is to protect innocent citizens who cannot protect themselves, such as consumers and investors. In this case, the attorney general is purporting to protect large financial institutions who can protect themselves and did not request the attorney general's [protection]. So while motive is not directly relevant to the issues before them, I don't think the judges will be able to ignore the ramifications of their decision," he said.
"This case involves punishing Trump primarily for past harm in using an overstated financial statement. I think he has a strong argument that when the attorney general seeks to punish for past use, rather than prevent future use, she would have to show all of the traditional elements of fraud."
Germain said Engoron may try to shape this week's judgment to try to include examples of past fraud.
"I also expect that Judge Engoron will select testimony from the trial that would support the elements of fraud, but the evidence of reasonable reliance [on Trump's financial statements] by the 'victims' is very weak," he said.
A banking official has already told the trial that he did not not solely rely on Trump's statements when they were assessing his a loan application and that the bank makes its own calculations.
New York executive order 63.12, under which James took her case, gives her wide powers to investigate alleged business fraud.
"While the attorney general's motive is not technically a defense, it should weigh heavily on the judges' minds in deciding whether 63.12 gives the attorney general such extraordinary powers to punish false information, even if the information was not intentional, was not relied on, did not harm anyone," Germain said.
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