Earlier this month, a collection of people and entities affiliated with President Donald Trump — specifically, the Donald J. Trump Revocable Trust, DJT Holdings LLC, DJT Holdings Managing Member LLC, DTTM Operations LLC and Eric Trump — sued Capital One bank for having “unjustifiably” closed numerous Trump-associated bank accounts in the aftermath of the Jan. 6, 2021, insurrection at the U.S. Capitol.
The lawsuit pleads that “de-banking” — closing depositors’ bank accounts — was originally meant to stop fraudsters from having access to banking facilities but it morphed into a way to punish depositors for their political beliefs. The lawsuit explains that completely legal gun and ammunition dealers or payday lenders often found themselves de-banked by unelected bureaucrats who disagreed with the businesses’ political beliefs. The plaintiffs claim to have been damaged by this type of de-banking when Capital One closed Trump accounts because of the Trumps’ “political views.” The Trumps seek damages under an assortment of state consumer protection laws.
Just how many ways is this lawsuit silly? Let me count them.
As a purely legal matter, the Trumps don’t appear to have suffered any recoverable money damages. According to the lawsuit, Capital One closed the Trump bank accounts. Presumably, the bank returned the Trumps’ money to them — the lawsuit doesn’t say otherwise, and it’s inconceivable the bank would have stolen the Trumps’ money. (A representative for Capital One declined to comment for this article.)
It’s true that individual depositors with small accounts — such as gun shops — might have trouble setting up new banking relationships after they were “de-banked,” but a large real estate business, such as the Trump Organization, would have had no trouble on that score. So while we don’t know for certain, the Trumps’ situation was presumably this: Capital One closed the Trumps’ bank accounts, Capital One returned the Trumps’ money, the Trumps promptly found a new bank, and the Trumps, uninjured, went on with their business.
A fundamental element of any lawsuit is that a plaintiff must have suffered damages. Here, except perhaps for the inconvenience of changing bankers, the Trumps suffered none.
Where’s the case?
But that’s just the legal flaw in this lawsuit. Think for a moment about the practical flaws.
Just how many ways is this lawsuit silly? Let me count them.
Is any jury going to believe that Capital One stopped its banking relationship in the months after Jan. 6 because of Donald Trump’s political beliefs? Did the bank really think, “Donald Trump doesn’t like affirmative action and he opposes DEI, so we should close his accounts”?
Or is it far more likely — and in fact almost certainly true, and sure to be believed by a jury in a heartbeat — that Capital One closed the Trumps’ bank accounts because it didn’t care to be associated with a person who appeared to have incited an insurrection and then stood by silently for three hours as rioters ransacked the Capitol?
Just about everyone in America — all Democrats, and even some Republicans — knew that Trump was “practically and morally responsible for provoking the events” of Jan. 6, as then-GOP Senate leader Mitch McConnell put it at the time.
This wasn’t a matter of politics; it was a matter of morality.
Capital One didn’t close the Trumps’ bank accounts because of Trump’s political views. Capital One has denied that it closed the bank accounts for political reasons, but it wouldn’t be unreasonable to surmise that the bank didn’t care to be associated with anyone — Democratic, Republican or independent — who tried to interfere with the counting of votes in a presidential election. Handling financial transactions for Trump both would have been immoral and would have posed a reputational risk for the bank. Ending that relationship wasn’t improper; it was sane. Although many Americans seem to have forgiven Trump’s gross misconduct over the four years since the Jan. 6 riot, that misconduct could fully justify Capital One’s closing of the bank accounts. But the practical flaws in the Trumps’ lawsuit don’t stop there. In any lawsuit, the parties are permitted to take discovery — gather information — from each other. Capital One will thus have the right to request documents and take testimony from Donald Trump and others about Trump’s conduct on Jan. 6. As the House Jan. 6 committee proceedings made clear, there is nothing about Trump’s conduct in early January 2021 that is praiseworthy; there is much that should be condemned. Does Trump really want to relive, and again place in the public eye, the events of one of the most notorious days in his life? There are many reasons for the Trumps to abandon this lawsuit. There is only one reason for them to pursue it: to get a financial settlement. There’s no legal reason for Capital One to settle the Trumps’ newest lawsuit. The lawsuit is both defensible and embarrassing for Trump to pursue. But there are surely practical reasons — avoiding the wrath the federal government could inflict on a bank — for Capital One to cough up some dough to make this go away. Is that justice? Not by a long shot. But does it appear to be a recurring way for Trump to profit while he has the government on his side? Bank on it.
Mark Herrmann
Mark Herrmann is a lawyer and the author of "The Curmudgeon's Guide to Practicing Law." 
