Tough day in Trumpland, after the New York Supreme Court ordered Don Jr., Ivanka, and the former president to quit stalling and sit for testimony in the New York Attorney General’s investigation of the family business.
“In the final analysis, 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 a right to do so,” wrote Justice Arthur Engoron, who has ruled repeatedly against the defendants in the past two years since Eric Trump refused to be deposed, allowing AG Letitia James to put all their business on the public docket.
Eric Trump continued his pattern of umm, “helping” this week, promising that his lawyers would wow the judge with “81 pages of videos, tweets & fundraising solicitations” documenting “blatantly unethical behavior” by the OAG. Thus, this morning’s hearing on a motion to quash the subpoenas for his family devolved into a shitshow of Trumpian proportions.
The only new issue before the court was a procedural one resting on New York’s automatic grant of transactional immunity for testimony before a grand jury. The Trumps argued that the OAG’s civil investigation is functionally co-terminus with the District Attorney’s criminal prosecution, and thus the civil subpoenas amount to an end-run around criminal protections.
Of course, the Trump’s remain free to assert their Fifth Amendment right against self-incrimination in a deposition, as the court pointed out. To which the former president’s lawyer Ron Fischetti indulged himself in what could fairly be described as a tantrum, shouting, “My client can’t take the Fifth Amendment. It’ll be all over the papers!” and insisting that he doesn’t care that Eric Trump took the Fifth 500 times, because “My client is not Eric Trump! My client is Donald Trump!”
“He’ll want to testify,” Fischetti yelled, as if his inability to control his own client was the court’s problem.
Don Jr. and Ivanka’s lawyer, Alan Futerfas, tried valiantly to make this one happen, describing AG James making an “operatic” entrance to court hearings with DA Bragg as if it were proof that the civil and criminal investigations were one and the same. But the law was not on his side.
“This argument completely misses the mark. Neither OAG nor the Manhattan District Attorney’s Office has subpoenaed the New Trump Respondents to appear before a grand jury ” wrote Justice Engoron, adding that “There is no evidence to support the New Trump Respondents’ suggestion that, in the absence of a parallel civil investigation, OAG would have been forced to subpoena the New Trump Respondents to appear before a grand jury, in which case they would have been entitled to immunity under CPL 190.40.”
The only other issue was the Trumps’ effort to relitigate the legitimacy of the OAG investigation yet again, as if Justice Engoron hadn’t been forcing them to comply with it since summer of 2020. For reasons unclear, attorney Alina Habba presented the court with a reenactment of her most recent Newsmax hits, complete with references to Hillary Clinton “spying” on the White House.
“That’s not an issue before the court,” observed Justice Engoron, adding later that his chambers are similarly “not the Attorney Disciplinary Committee,” so perhaps her improvisational poetry on the subject of prosecutorial misconduct would be better submitted elsewhere.
Readers of these pages will be familiar with Habba from her various doomed Trump missions, such as her effort to persuade the Pulitzer Committee to rescind prizes for the New York Times and Washington Post. It will thus not surprise you to read that she argued that Trump was a member of a “protected class” being unlawfully discriminated against by James and Bragg.
When asked by the court what that class might be — “We all went to law school, we all read about protected classes.” — she blurted “political viewpoint!” Perhaps she meant to go for broke and repeat Trump’s allegations that Black prosecutors who come after him are “racist,” but sadly we’ll never know.
“More than a year ago, at the outset of this special proceeding, this Court held that the OAG’s investigation, undertaken pursuant to New York Executive Law § 63(12) was lawful,” the court wrote, refusing to revisit the issue based on Habba’s “new” presentation of Tish James’s campaign statements.
“Moreover, 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 public office with investigatory powers.” (What’s good for the LOCK HER UP goose, etc.)
The court ordered the respondents to turn over the contested documents within 14 days and sit for deposition within three weeks. The orders will, of course, be immediately appealed and possibly stayed by a higher court, but all in all not a great day for Team Trump.
Order [N.Y. Courts]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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