- The Trumps are appealing demands for their testimony from New York Attorney General Letitia James.
- On Wednesday, four appeals judges sounded skeptical that James’ subpoenas are improper and biased.
- James is seeking testimony from the Trumps as she wraps up her probe of the Trump Organization.
A lawyer for Donald Trump, Ivanka Trump, and Donald Trump Jr. faced strong but good-natured pushback in a Manhattan appeals court on Wednesday as he argued that the New York attorney general’s subpoenas for his clients’ testimony are improper and rooted in political bias.
The four-judge panel will decide whether the three Trumps must give sworn, closed-door testimony in Attorney General Letitia James’ investigation of the family’s real-estate business, the Trump Organization.
In fighting the subpoenas in oral arguments, Alan S. Futerfas reprised the two arguments he’s used in state court and an appellate brief.
The first argument is that James’ three-year investigation into the former president’s business is a partisan vendetta. Futerfas argued that James, a Democrat, has publicly criticized the former president and GOP kingmaker since running for attorney general in 2018.
As his second point, Futerfas argued that the Trumps shouldn’t be forced to give depositions in James’ civil probe of the family business when their testimony could put them at risk in a parallel criminal probe.
Futerfas argued that “the attorney general is basically standing in the shoes of the district attorney” and that forcing the Trumps to testify in James’ civil probe would eviscerate their Fifth Amendment right against self-incrimination.
But members of the four-judge panel of New York’s First Judicial Department repeatedly asked the same question that a state judge had asked in ordering the Trumps to testify: If the Trumps fear incriminating themselves, why not just comply with James’ subpoena and then plead the Fifth?
“I agree that it is proper for courts to protect against the evisceration of the privilege against self-incrimination,” Rolando Acosta, the presiding justice, told the Trump family lawyer.
“But what prevents you from invoking that privilege?” he asked. “Why do we need to intervene in this case, and interfere in or constrain the ample discretion and authority given by statute to the attorney general?”
Another judge on the appellate panel, Peter Moulton, noted that the attorney general had been gathering evidence against the Trumps via her civil probe since 2019, when Michael Cohen, Trump’s former lawyer, testified in Congress about his former boss’ alleged financial wrongdoing.
For example, James has said in filings that her office is pursuing Cohen’s allegation that Trump would inflate the value of his assets in seeking hundreds of millions in bank loans and then deflate the value when seeking a break on property taxes.
“Counsel, does it matter that the civil fraud investigation began in 2019, well before the criminal prosecution, and was based upon the testimony of Michael Cohen, and has gathered quite a lot of evidence since then — thousands of pages of documents?” Moulton asked.
James didn’t announce she was weighing criminal charges until May 2021, two years after the civil probe began.
“It had some momentum going before there was a criminal prosecution,” Moulton said of James’ civil probe.
“But by the time you get to the issuance of these subpoenas,” Futerfas countered, “Letitia James had announced that she was part and parcel of the criminal investigation” by the Manhattan District Attorney’s Office that led to the indictment of the Trump Organization and its chief financial officer at the time, Allen Weisselberg.
A third judge on the panel, Anil Singh, pushed back against the lawyer’s claim that James is politically biased against Donald Trump.
Futerfas said James had made “years of statements” against Trump, calling him an “illegitimate president” and vowing to prosecute him.
“And the attorney general sought political contributions in January of 2022, and it’s in the record,” he said. “There’s an email blast that went out saying, ‘Do you like this president? Do you support this president?’ because the attorney general was running for governor for a short time.
“And it was all about using political animus against Mr. Trump,” he said. “While she was an officer of the state! How could she do that?”
“Counsel, counsel,” Singh interrupted. “Isn’t there a factual predicate for the investigation, based on Cohen’s testimony?”
“Certainly, when Mr. Cohen testified, they could have an investigation,” Futerfas answered.
“I’ve been practicing law for 34 years,” he continued. “I’ve never seen the kinds of statements, in 34 years, that were made by someone seeking the highest law-enforcement position in the state. They’re simply wrong. They’re unacceptable.”
Futerfas said that any other law-enforcement officer who made the kinds of statements James made against Trump against an investigatory target — what he called “the merging of political agendas with law enforcement” — would have been forced to recuse themselves.
The last judge to speak, Tanya Kennedy, brought the discussion back to the attorney general’s right to issue civil subpoenas even while commencing a criminal investigation, as argued during the proceeding by Judith N. Vale, an appeals lawyer for the attorney general. (Read the attorney general’s response to the Trump document subpoena appeal here.)
“They’re allowed to collect evidence, right?” Kennedy asked.
Kennedy last week turned down Donald Trump’s request for an immediate halt to a $10,000 contempt-of-court fine for failing to comply with the attorney general’s separate subpoena for his documents, which the former president is also appealing.
“Justice Kennedy,” Futerfas said, “they have already said, and they have never denied, whatever information they get under the guise of the civil subpoena is going to go right to the DA’s office. They’ve never denied it.”
And what’s wrong with that, the presiding justice asked.
“Isn’t that in the normal course of business?” he asked. “Generally, they start with an investigation into a particular conduct … and then they conduct a civil investigation. If that civil investigation creates criminal jeopardy, then it creates criminal jeopardy.”
It was a busy day in court for Trump and his business.
Earlier in the day, a lower-court judge ordered that Trump must cut a $110,000 check to James’ office to end the contempt-of-court order that was charging $10,000 a day in penalties for the former president’s failure to comply with James’ subpoenas for his documents.