MANHATTAN (CN) – Embattled National Rifle Association board member and former president Oliver North will be deposed Tuesday morning in a New York state investigation without NRA lawyers present, to the consternation of the gun-rights group.
That’s the status quo, however. It would have been unusual, possibly unprecedented, for the target of a law enforcement investigation – in this case, the New York State Attorney General’s probe of the NRA’s nonprofit status – to sit in on questioning for that investigation.
The attorney general’s office is expected to question North about the group’s spending. Because the NRA is a 501c4 “social welfare” organization, it is banned from political activity and the Attorney General’s office also says it could have made misleading statements on regulatory filings about its finances.
Late Monday afternoon, Justice Ellen Gesmer in New York’s First Department upheld a lower court’s ruling earlier in the day that the NRA could not sit in on North’s questioning by the office of Attorney General Letitia James.
North’s attorney, Brendan Sullivan from Williams & Connolly, is not affected by Monday’s back-and-forth between the NRA and the state and will be present at the deposition Tuesday, he confirmed.
There is no precedent for the subject of a law enforcement investigation to watch a deposition in that investigation, said Steven Wu for the attorney general’s office during Monday afternoon’s hearing in the First Department. Wu said if the NRA were allowed to do so, that would be a “troubling precedent.”
“This would be a compromise to the integrity of the investigation,” said Wu. “It’s a chilling effect on what [North] might say.”
The NRA wanted its lawyers present to lodge concise objections aimed at preserving privileges belonging to the NRA, its counsel, and its board counsel, including communications protected by the attorney-client privilege, the work-product doctrine, and as trial-preparation material, it said.
NRA attorney Svetlana Eisenberg, of Brewer Attorneys & Counselors, told Gesmer in a 45-minute hearing late Monday afternoon that she was a former prosecutor herself and feared the state’s investigation would get an unfair advantage from North’s testimony. North resigned as president of the NRA in April after the gun group’s chief executive, Wayne LaPierre, accused him of threatening to release damaging information on LaPierre in attempted coup.
There was a “high risk” of privileged information being “accidentally revealed” to the attorney general’s office, said Eisenberg. The office could then use information or leads from North it wasn’t allowed to have in its investigation, Eisenberg argued.
“Without me there, they will potentially be subjecting themselves to information they are not entitled to see.”
Though Eisenberg appeared Monday on behalf of both the NRA and its board, she also requested that separate lawyers for each be allowed to hear North’s deposition, a proposition Gesmer shot down.
The NRA has 76 board members, Assistant Attorney General Emily Stern noted.
“Following your logic,” Gesmer said, turning to Eisenberg, “isn’t it possible that all 76 individuals could come in and say, ‘I want my lawyer there [at the deposition] too?” Eisenberg conceded that it was.
The attorney general’s office will instruct North not to provide any attorney-client privileged information, Wu said, one of the arguments Eisenberg had leaned on.
Part of North’s allegations against the NRA concern the Brewer law firm, Gesmer pointed out to Brewer’s own Eisenberg. Eisenberg said the firm had been brought in specifically to deal with New York’s investigation of the group.
Earlier Monday, Manhattan Supreme Court Judge Melissa Crane had rejected the NRA’s request to monitor North’s deposition by the state. The gun group immediately appealed, and Justice Ellen Gesmer in New York’s First Department squeezed in the parties for a hearing this afternoon around 4:30.
After Crane’s decision in the state’s favor, New York Attorney General Letitia James celebrated the news in a statement, which did not change after Gesmer’s decision.
“Despite the NRA’s best efforts to silence board members, justice will prevail, and the truth will be exposed, because no one is above the law,” she said.
“We are pleased with today’s decision because the NRA should never be allowed to stifle a legal investigation. The court has ruled that former NRA board president Oliver North will now be able to sit down with our investigators and answer our questions, without the intimidating presence of the NRA.”
New York’s investigation is ongoing and so far not resulted in any litigation or enforcement actions.