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NY Attorney General Letitia James wants Eric Trump's testimony

The president's son refused to appear for questions, or produce documents requested, despite a subpoena.
Image: Republicans Hold Virtual 2020 National Convention
Eric Trump pre-records his address to the Republican National Convention in Washington on Aug. 25, 2020.Drew Angerer / Getty Images

New York Attorney General Letitia James wants to talk to Eric Trump.

Officially, she’s been waiting for months.

It all comes down to his family's financial records, which have been hard to come by. The Trump organization has been in the sightlines of the attorney general’s office since March 2019, after Michael Cohen, the disbarred former senior executive of the Trump Organization, produced to Congress copies of President Donald Trump’s financial statements for 2011, 2012 and 2013. Cohen testified that the statements inflated the values of Trump's assets to obtain favorable terms for loans and insurance, while also deflating the value of other assets to reduce real estate taxes.

In a statement issued Monday the attorney general’s office explained, “At dispute are seven subpoenas which would provide the Office of the Attorney General (OAG) with thousands of documents and testimony from multiple witnesses regarding several, specific Trump Organization properties and transactions. Among other things, the action seeks to compel the testimony of Trump Organization Executive Vice President Eric Trump, who was intimately involved in one or more transactions under review, as well as the production of thousands of documents wrongly withheld.’”

The statement noted the younger Trump “refuses to show up for a scheduled, subpoenaed interview.”

That subpoena went back to May 26, when the attorney general officially went after those documents and the younger Trump’s testimony. Originally Eric Trump, 36, agreed to appear for an examination in July. Then, less than two days before it, lawyers for the Trump Organization wrote to tell the attorney general Eric Trump would not be produced for testimony after all.

Since then, the younger Trump, who is not only the executive vice president of the Trump Organization but also a “custodian” of the company’s records, along with the Trump Organization, have continued to resist efforts by the attorney general’s office to take his testimony and obtain records. The Trump Organization apparently wanted confirmation that the probe was only a civil investigation -- as opposed to criminal. If it’s a criminal investigation, and Eric Trump is a target, then he should not volunteer to speak to law enforcement, the organization said.

In light of the recent court filing, resistance is a smart move -- but probably futile.

On Monday, the attorney general moved beyond the niceties of negotiating, and instead asked a New York state court to compel Eric Trump, the Trump Organization and other Trump entities, individuals and law firms, to hand over the documents, and for Eric Trump to sit down and give testimony.

“Nothing will stop us from following the facts and the law, wherever they may lead. For months, the Trump Organization has made baseless claims in an effort to shield evidence from a lawful investigation into its financial dealings,” James’ statement continued. “They have stalled, withheld documents, and instructed witnesses, including Eric Trump, to refuse to answer questions under oath. That’s why we've filed a motion to compel the Trump Organization to comply with our office’s lawful subpoenas for documents and testimony.”

Among the properties being specifically investigated by James’ office are the Trump International Hotel and Tower Chicago, the Seven Springs estate, a sprawling 212- acre property in Westchester, New York, the Trump National Golf Club Los Angeles, and 40 Wall Street.

From a legal standpoint, Eric Trump and the Trump Organization have reason to be concerned about this investigation. State attorneys general are criminal prosecutors, like local district attorneys or federal prosecutors. However, state attorneys general often take on broader roles, such as consumer protection and anti-fraud. For that reason, they engage in a lot of civil litigation.

In New York, for example, the Legislature has granted the office of the attorney general expansive authority to investigate what is called “fraudulent” business activity. The office of the attorney general may bring suit against a company that is repeatedly breaking the law. It may also sue a defendant engaged in repeated fraudulent acts, regardless of whether the acts are even illegal. “Fraud” is broadly defined as anything that tends to deceive, or that creates an “atmosphere conducive to fraud.” The attorney general can ask a court to order a stop to the conduct, and monetary penalties from the company. It has used this law many times in the past, for example, against the now-shuttered Trump University.

The court filing issued this week is partially redacted, but it still reveals a lot about its investigation. The Office of the Attorney General (OAG) claims it has “determined Eric Trump likely possessed information relevant to OAG’s inquiry [redacted].” Prosecutors often redact court filings if the information might jeopardize an ongoing investigation by revealing alleged criminal conduct before they are prepared to formally charge someone.

Then, the OAG alleges that “Eric Trump was intimately involved in the Trump Organization’s development efforts.” The next paragraph, presumably describing those efforts, is completely redacted.

Whatever is behind the redactions, two things about them must be true: Eric Trump possesses information; and it’s the kind of information that the OAG is redacting because it relates to the confidential investigation. In other words, the OAG”s “fraud” investigation may be civil in nature, but there are plenty of criminal statutes that apply to fraudulent conduct too.

The Trump organization’s lawyers didn’t really need to ask if the OAG’s investigation is limited to a “civil” investigation. A civil investigation can always evolve into a criminal investigation when it’s conducted by a law enforcement agency. It’s possible the Trump Organization initially agreed to cooperate as a stalling tactic; more likely, though, it felt increasingly uneasy about the direction of the OAG’s investigation.

For that reason, Eric Trump's lawyers are likely telling him it would be wise to at least try to resist giving testimony. He will probably not succeed. Subpoenas such as these are upheld by courts unless they seek “utterly irrelevant” material or they are obviously futile. Even if Eric Trump claims a Fifth Amendment privilege against self-incrimination, a court will probably not allow him to refuse to appear on that basis. He will probably have to give testimony and assert the Fifth Amendment after questions are asked.

It’s harder for a company to resist producing documents than producing people to testify. The OAG is highly likely to get the documents it wants from the Trump Organization, and it will probably get the testimony of Eric Trump too. If he asserts the Fifth Amendment under questioning, the OAG will probably see that as a victory too.