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If a delay is a win for Donald Trump, then in a way he won by appealing and successfully postponing his testimony before New York Attorney General Letitia James about allegedly hinky Trump Org business valuations. But in another, more accurate way, AG James is the winner because the First Judicial Department just agreed with Supreme Court Justice Arthur Engoron that Trump’s arguments were bullshit and ordered him to testify.
Four months ago, Trump’s legal team argued that the existence of parallel civil and criminal investigations meant that the OAG was not allowed to subpoena Trump and his two eldest children, Don Jr. and Ivanka, to testify. Their theory, as advanced by attorney Alan Futerfas, was that the OAG was making an end run around the District Attorney’s obligation to put them before a grand jury and grant them automatic immunity.
The OAG responded that this was contrary to both law and precedent, and that the Trumps were free to plead the Fifth in response to any question, as Eric Trump had done hundreds of times when he’d been ordered to testify in 2020.
“My client can’t take the Fifth Amendment. It’ll be all over the papers!” shouted Trump’s lawyer Ron Fischetti, as if this was a compelling legal argument.
And Alina Habba, Trump’s nuttiest lawyer this side of Giuliani, rounded out the three ring circus by shouting that the whole proceeding was illegitimate because AG James was a Trump hater.
Perhaps unsurprisingly, Justice Engoron failed to be persuaded by any of Trump’s lawyers, and on February 17th the court ordered the three respondents to go under oath within 21 days. The Trumps appealed, and Justice Engoron stayed his order, with the parties stipulating that testimony would take place within 14 days of a decision by the First Department.
The May 11 appellate hearing was less of a dumpster fire than the one that proceeded it, perhaps due to the absence of attorneys Habba and Fischetti. But Alan Futerfas’s argument that a pending criminal investigation barred the OAG from deposing his clients got a highly skeptical reception at the court.
“You’re asking us to eliminate dozens of years of precedent or act as legislators,” Presiding Justice Rolando Acosta said incredulously. “It’s not like you are unaware of your criminal jeopardy, in which case you can invoke your privilege against self incrimination. That’s the remedy that you have.”
And the argument that the Trumps were entitled to a hearing on James’s bias fared no better.
“We have years of statements by Letitia James,” Futerfas shouted.
“We have years of statements by everybody,” Justice Acosta responded.
So today’s order by the First Department is pretty much as expected.
“Individuals have no constitutional or statutory right to be called to testify before a grand jury under circumstances that would give them immunity from prosecution for any matter about which they testify,” the panel wrote, adding later that “The political campaign and other public statements made by OAG about appellants do not support the claim that OAG initiated, or is using, the subpoenas in this civil investigation to obtain testimony solely for use in a criminal proceeding or in a manner that would otherwise improperly undermine appellants’ privilege against self-incrimination.”
Agreeing with the trial court that the OAG’s investigation was appropriately predicated, the appeals court similarly refused to quash the subpoena. Which means that Trump and his children are going to have to sit down and testify within the next two weeks.
“Once again, the courts have ruled that Donald Trump must comply with our lawful investigation into his financial dealings,” AG James said today. “We will continue to follow the facts of this case and ensure that no one can evade the law.”
And then she turned around and deposited a copy of the First Department’s ruling on the docket of US District Judge Brenda Sannes, whom the Trumps have asked to seize jurisdiction from the state courts for the sake of “due process.”
Because, in a more accurate way, the AG is going to win that round, too.
Liz Dye lives in Baltimore where she writes about law and politics.
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