Why is Trump's alleged fraud in New York not prosecuted as a criminal offense?

Question

The New York Attorney General has filed a civil "complaint" against Donald Trump as well as some family members and companies. The allegations are centering around fraud by inflating property values in financial statements provided to banks and insurances.

As a German, I am confused: Civil lawsuits here do not involve the Attorney General (the Staatsanwalt) because they are disputes between private parties, usually arising from violated contractual obligations or damages. In such suits, the state is neither plaintiff nor defendant. In Trump's case, the banks or insurance companies would be the plaintiffs (but they didn't sue).

In criminal suits, by contrast, the Staatsanwalt takes on the role of plaintiff because somebody did an act that is deemed unacceptable. It is often the case but systematically not necessary that there is a damaged party.

Of course, some actions like fraud are criminal offenses — and are as such prosecuted by the Staatsanwalt — while also causing damage to third parties who can file a civil suit. But there would be two trials with totally different goals: One to prosecute a criminal act, and a separate, civil suit in which a private party seeks compensation for damage. (In reality, I think, the civil suit can be factually connected to the criminal suit because if the criminal suit asserts, say, a criminal fraud, then the damaged party has a better chance to make their civil case.)

In New York (and presumably other states) there exists, apparently, a hybrid type of suit: A civil suit where the plaintiff nonetheless is the state.

Still, this begs the question:

Why is this not a criminal suit? After all, the Attorney General is alleging fraud which, I must assume, is a criminal act even in New York.

Answer 1

In the U.S., public official enforce the law with both civil actions and criminal actions as they deem appropriate. In this case, the NY attorney-general did bring a separate criminal case against the Trump Organization and one or more of its top officials, and has another criminal case pending against Trump himself, but decided not to bring criminal charges for this case.

Civil enforcement actions are routine for government officials in every U.S. state and local government, and for the federal government. Most kinds of white collar legal violations are predominantly enforced through civil enforcement rather than criminal charges, in part, because this is perceived as less harsh and because it affords the government a wider range of remedies.

There are many legal protections for defendants in criminal enforcement actions brought by the government, that are not present in civil actions.

For example, in a civil action:

• the case has to be proven by a preponderance of the evidence rather than beyond a reasonable doubt;

• the defendant can be compelled to testify (or have a refusal to testify held against the defendant);

• the defendant can be compelled to provide documents in the defendants' possession;

• a finding of no liability can be appealed;

• fewer steps of the case must be conducted in person in open court;

• economic damages can be awarded be beyond a statutory fine and "restitution" which is narrowly defined as actual out of pocket losses, and can instead include, for example, disgorgement of unjust gains received and punitive damages;

• civil consequences such as the termination of licenses, injunctive relief, placing assets and companies in receivership, and orders to judicially dissolve companies are available;

• there is not a right to a speedy trial in a civil action;

• the scope of the right to trial by jury in a civil action is narrower and permits judges to enter "summary judgment" prior to a trial on the merits; and

• indigent defendants are not entitled to counsel at state expense (probably not an issue in this case).

Also, even if there are arbitration clauses between the offender and the victim, a civil action by a government official to enforce the same rights is not subject to the arbitration clause.

But, some remedies available to the state are different in a criminal action than in a civil action:

• a losing defendant cannot be incarcerated simply for losing (brief incarceration could be authorized for the separate offense of defying the court during the case);

• the collateral effects of being a felon if convicted do not apply.

Answer 2

Some offences are crimes, some offences are not, and some can be prosecuted either way

In common law jurisdictions the legislature can determine if an offence is a crime punishable by fines and/or imprisonment, or a civil offence punishable by a pecuniary penalty. In some cases this is hard and fast: in new-south-wales murder is a crime, parking offences are a civil offences. In other situations the prosecutor has the choice of which avenue to pursue: in australia many anti-competitive offences are either-or.

A civil offence is easier to prove as it only requires a balance of probabilities standard rather than a beyond reasonable doubt standard, but imprisonment or other custodial punishments are off the table.