Justice scored a win this week in the ongoing battle between former President Donald Trump and the legal system when a New York judge ordered Trump and his adult children to comply with subpoenas issued by New York Attorney General Letitia James.
News that Trump’s longtime accounting firm, Mazars, broke up with him after it disclaimed years of financial statements makes this testimony even more pressing.
James is investigating Trump and the Trump Organization, and whether it (and/or those affiliated with it) engaged in improper or fraudulent business practices by inflating the value of properties to get favorable loans and deflating the value of properties for beneficial tax treatment. The Manhattan district attorney has launched a parallel criminal investigation based on the same allegations.
As part of this investigation, James did what anyone looking into the business practices of the Trump Organization would do: She asked for documents and testimony by those who make decisions for the organization — Trump and his adult children, Ivanka Trump and Donald Trump Jr. The breaking news that Trump’s longtime accounting firm, Mazars, broke up with him after it disclaimed years of financial statements makes this testimony even more pressing.
Being nothing if not consistent, Trump and his two adult children tried to block that testimony. In their futile attempt to avoid being deposed, the Trump family argued, as they so often do when the government is investigating them, that James and her office is politically biased.
More to the point, the Trump family also argued that because there is an ongoing criminal investigation that James’ office is cooperating with, James could not compel the three Trumps to testify under oath. They claimed that because James’ office is cooperating with the district attorney’s office in its criminal inquiry, James should only be able to obtain that testimony before a grand jury because otherwise the criminal investigation would improperly benefit from James’ office’s depositions.
New York law provides that witnesses who testify before grand juries receive immunity based on that testimony. What the defendants’ argument boils down to is: If you want the Trump family members to testify, then you must give them immunity. Unfortunately for the Trumps, yelling and fist-pounding are not equivalent to legal backing. James’ office is entitled to obtain evidence in its civil investigation; the fact that James’ office is assisting with a parallel criminal probe does not make James’ requests for testimony improper.
State Supreme Court Judge Arthur Engoron concluded that the Trumps’ argument “completely misses the mark” (more or less judicial speak for, “LOL. No.”). State Supreme Court Judge Arthur Engoron concluded that the Trumps’ argument “completely misses the mark” (more or less judicial speak for, “LOL. No.”). Engoron noted that if the Trumps were reasonably concerned that answers they give under oath in the civil probe could lead to criminal charges against them, they could invoke their Fifth Amendment right against self-incrimination. The Trumps of course know this; Eric Trump invoked this privilege more than 500 times when he was deposed by James’ office. The lawyers’ arguments often appeared better tailored for a cable television segment than a court of law. Engoron’s response is restrained given that during the two-hour hearing he and his clerk had to repeatedly remind the Trump family attorneys to essentially settle down, and even had to call “timeouts.” Under Engoron’s order, Trump must produce certain documents requested by James’ office within two weeks, and Trump, Ivanka, and Donald Jr. must sit for depositions within three weeks. Of course, this is not the end of the story. The Trump family can, and likely will, appeal this decision. But, given that their argument has been resoundingly rejected, again because of its lack of legal grounding, that appeal is unlikely to do more than delay the inevitable. So what happens after the Trump family has exhausted their appeals and they’re ordered to testify under oath? If there are beans to be spilled, will Trump or his children spill them? Likely not — again, if Eric Trump’s 2020 testimony before the New York attorney general is any indication, they will all “plead the Fifth.” (This despite the fact that Trump once declared that “the mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”) We don’t know if James’ office will eventually file civil charges against any of the Trumps. We do know that she should be able to proceed with her investigation. As Engoron noted, James’ office has already “uncover[ed] copious evidence of possible financial fraud.” This week’s ruling does not, in sum, mean that Trump will have to pay hefty fines or see the inside of a jail cell. It does mean he will have to answer questions under oath about his financial practices. And for now, that is a welcome win for the rule of law.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
