The Trumps Were Just Ordered To Testify in New York. That’s Really Good, Right? Let’s Unpack.

New York State Attorney General Letitia James scored a victory in court yesterday after Judge Arthur Engoron ruled that Donald Trump and his two offspring, Don Trump, Jr. and Ivanka Trump, will be required to sit for testimony as part of James’s civil investigation into fraudulently submitted valuations on Trump real estate properties. While the Trumps sought to portray the entire case as an illegitimate political “witch hunt,” the judge dismissed that argument and ordered the testimony to proceed within 21 days and for responsive documents to be produced within 14.

The Trumps tried to focus attention on campaign statements made by James in which she promised to go after Donald Trump, with the clear implication that she was abusing her powers in pursuing a partisan investigation. But these missives seemed directed more at the press and the former president’s base than at the court. (Trump’s attorney, Alina Habba, apparently made “Twitter-style” arguments in court and was disrespectful to the judge, all while arguing that Trump was a “special class” of person who belongs to a protected class. The judge, confused, asked repeatedly which class that was.) In the end, the court paid little heed to the arguments around James’s alleged bias. “Attorney General James, just like respondent Donald J. Trump, was not deprived of her First Amendment rights to free speech when she was a politician running for a public office with investigatory powers,” the decision said.

The Trumps did raise a legal argument that will certainly be the subject of an appeal and which might arguably have some merit, or at least is not yet settled law in the state. By pursuing a civil investigation at the same time that she is openly cooperating with the Manhattan District Attorney on a pending criminal matter, James was seeking an end run around the protections that normally attach to witnesses asked to testify, the Trumps argued. Specifically, in a grand jury criminal setting in New York state, testifying witnesses are granted immunity from prosecution over the subject matter of their testimony. No such immunity exists for witnesses testifying in a civil investigation, however, and therefore the Trumps argued that AG James was getting the benefit of civil rules for what is essentially a criminal case with which her office is presumably sharing information.

The judge dismissed this argument as well, saying it “completely misses the mark.” He noted that the Trumps had not been subpoenaed to appear before a grand jury, so the hypothetical “end run” around grand jury immunity was a wholly academic one. He further ruled that James’s office had uncovered evidence that entitled her to question the Trump family. “In the final analysis,” Engoron wrote, “a State Attorney General commences investigating a business entity, uncovers copious evidence of possible financial fraud, and wants to question, under oath, several of the entities’ principals, including its namesake. She has the clear right to do so.”

That evidence was part of the reason Trump’s longtime accountants at Mazars quit their client in an explosive letter delivered earlier this month and produced in support of James’s motion to compel the Trumps’ testimony. In that letter, the accounting firm walked back ten years of financial statements and cautioned the Trump Organization and its lenders not to rely upon them. When the Trumps sought to portray this damning development in a positive way because Mazars had not “as a whole” found material discrepancies between the information the Trump Organization provided and the actual value of Mr. Trump’s assets, Judge Engoron shot this down quickly, calling the Mazars letter a “red-flag warning” and observing that the argument the letter somehow exonerated the Trumps “is as audacious as it is preposterous.”

While the Trumps are certain to appeal the ruling, their chances of quashing the subpoenas outright are quite low. Come time to testify, it is probable that they will do as Eric Trump did in his deposition, namely to plead the Fifth Amendment some 500 times in response to all or nearly all the questions. But there is a twist here: Because this is a civil investigation for tax fraud and not a criminal matter, a jury that might be later seated in a civil case would be permitted to draw adverse inferences from a witness’s refusal to testify. That could lead to a disastrous verdict against the Trump Organization, which faces the prospect of having its entire charter to do business canceled by the state. Moreover, Donald Trump pleading the Fifth would make headlines all across the world and taint him politically, even if it could not be used adversely against him in a criminal matter.

The former president is not helping his own plight by releasing screeds and howlers at every opportunity. In his court filing on Monday, in an attempt to avoid testifying, Trump declared under oath that he “denies knowledge or information sufficient to form a belief as to the truth” about his company's finances. Yet in a statement a day later, made after news got out of him being dumped by his accountants at Mazars, Trump spoke glowingly about his company’s “fantastic assets” declaring, “My company has among the best real estate and other assets anywhere in the world, has significant amounts of cash, and has relatively very little debt, which is totally current." He even attempted, no doubt for the benefit of his lenders who might now call in the loans over fraud, to demonstrate by clumsy calculation that the company had a net worth of some 5.7 billion dollars (likely untrue).

James’s office took note of this glaring discrepancy in its responsive pleadings. “It is not unusual for parties to a legal proceeding to disagree about the facts,” the AG’s office wrote. “But it is truly rare for a party to publicly disagree with statements submitted by his own attorneys in a signed pleading — let alone one day after the pleading was filed. That is what Mr. Trump has done here.”

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