Thursday, September 21, 2023
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Trump family pushes judge to block subpoenas from NY attorney general

A ruling is promised for later this afternoon on the latest bid to quash subpoenas against the former president and two of his children.

MANHATTAN (CN) — “He gets immunity for what he says, or he says nothing," criminal defense attorney Ron Fischetti implored a New York judge on Thursday morning, referring to his client, Donald Trump, the one-term Republican president.

During a two-hour-long conference of the Manhattan Supreme Court held remotely on Thursday morning, attorneys representing Donald Trump and two of his children, Donald Jr. and Ivanka, insisted that New York Attorney General Letitia James is improperly conducting a civil investigation at the same time as a criminal probe.

“Once you use the word ‘criminal’, you’re in grand jury land,” said attorney Alan Futeras, who represents Don Jr. and Ivanka, repeatedly noting on Thursday that witnesses are offered immunity to testify before a grand jury.

New York offers what’s called grand jury transactional immunity to encourage witnesses to testify before the grand jury, protecting them from prosecution for any crime that is the subject of their grand jury testimony.

“Here we get transaction immunity,” Fischetti said on Thursday. “They want to ask him questions under oath? Fine, put him in a grand jury. Immunity, that’s what we’re entitled to, that’s what the constitution says we’re entitled to.

“They want to investigate? Investigate all they want, subpoena documents, subpoena witnesses, do whatever they want. If she wants sworn testimony from my client,” Fischetti continued, referring to Attorney General James, ”he’s entitled to immunity, that’s what the constitution and the state of New York says.

“He gets immunity for what he says, or he says nothing.”

The attorney representing Trump’s adult children similarly demanded grand jury immunity over civil depositions requested by the attorney general.

“Put ‘em before the grand jury, they’ll testify, they’ll have immunity, they won’t be able draw this unfair adverse inference that’d be grossly unfair,” Futerfas told Manhattan Supreme Court Judge Arthur Engoron on Thursday morning. “They’ll get the information they want, but at least our clients will get immunity pursuant to the law and the constitution.”

Even if ordered to comply with the subpoenas, the Trumps would be free to invoke their Fifth Amendment right to remain silent at any time in a deposition.

Trump's son, Eric Trump did so hundreds of times, as did the Trump Organization's finance chief Allen Weisselberg, when they were questioned by investigators in 2020.

Last summer, spurred by evidence uncovered in James' civil investigation, the Manhattan district attorney's office charged Weisselberg and the Trump Organization with tax fraud, alleging he collected more than $1.7 million in off-the-books compensation. Weisselberg and the company have pleaded not guilty.

The oral arguments on Thursday come one week after Trump’s former longtime accounting firm Mazars USA dropped him as client.

Mazars' letter, made public in a court filing Monday, came just weeks after New York Attorney General James said her civil investigation uncovered evidence that Trump and his company used “fraudulent or misleading” valuations of its golf clubs, skyscrapers and other properties to get loans and tax benefits.

Futerfas several times asserted that Attorney General James has “crossed the rubicon into criminal law land” and using her office’s probe an "improper run-around" over the restraints of the criminal investigation process with grand jury procedures.

Futerfas noted that James was present in court last July after the indictment of Weisselberg and the Trump Corporation. "Why would she be there, in the courtroom, sitting right next to Vance?" he asked, noting she also spoke outside the courtroom.

Judge Ergonon pressed the lawyer on what the “practical harm” would be of the Trump’s invoking their Fifth Amendment rights in response to the attorney general’s subpoena, something that the judge noted “the law clearly allows.”


“That is a negative consequence, your honor,” Futerfas replied. “The attorney general is going to take those assertions or those indications, use them in filings, publicize them to the world, put ‘em in filings and try to draw an adverse inference.”

Kevin Wallace, an attorney representing New York’s office of the attorney general, quoted former longtime Manhattan DA Robert Morgenthau speaking of Trump's bulldog mentor Roy Cohn, “A man is not immune from prosecution merely because a United States attorney happens not to like him.”

Donald Trump’s personal civil attorney Alina Habba, who sued Attorney General James in December 2021 to block her office’s fraud investigation as it appeared to be ramping up, also called on the Manhattan Supreme Court to block the attorney general’s subpoenas or stay the civil probe until the criminal case plays out.

With expressive hand-gesturing and speaking nearly too fast for the court reporter to keep up, Trump’s personal civil attorney offered several bombastic diatribes on Thursday reminiscent of her former reality star client.

“It is an improper run around of the rules,” Trump’s New Jersey-based attorney said on Thursday. “You cannot put your civil hat on when you want to be a civil attorney, and put on your criminal DA hat when that suits you.

“In this case, we need to have a stay,” Habba said. “We’re asking for a stay … it should be granted where criminal and civil actions involve the same subject matter.”

Judge Engoron appeared skeptical of Habba’s claims of viewpoint discrimination, noting that James’ statements as candidate for attorney general or once as the state’s top prosecutor pledging to investigate Trump’s finances never stated Trump was guilty.

“There are six hundred and some odd documents in this case … I don’t remember any point in which Letitia James criticized Donald Trump’s viewpoint,” the judge responded to Habba’s argument of animus. “Am I missing something there?

“What viewpoint of Donald Trump do you think Letitia James is using to investigate him,” the judge asked. “There’s no viewpoint discrimination. There’s politics maybe, she’s a politician, she was elected.”

Judge Engoron promised a ruling by 3 p.m. Thursday afternoon.

"I will not be bound, I will not be bullied by him or Donald Trump," James said Thursday referring to noted foes Trump and former Governor Andrew Cuomo. ”The truth, my friends, is a blindfolded woman. And she will prevail."

James, a Democrat, said her civil investigation has uncovered evidence Trump's company used "fraudulent or misleading" valuations of assets like golf clubs and skyscrapers to get loans and tax benefits.

She wants her investigators to be able to question Trump and his children, both of whom have been been executives in the Trump Organization.

"The Trumps must comply with our lawful subpoenas for documents and testimony because no one in this country can pick and choose if and how the law applies to them," James said in a statement. "We will not be deterred in our efforts to continue this investigation and ensure that no one is above the law."

In a statement Tuesday, Trump railed against what he called a "sham investigation of a great company that has done a spectacular job for New York and beyond" and a racially motivated "continuation of a Witch Hunt the likes of which has never been seen in this Country before."

In a court filing this week, James included a letter from Trump's longtime accounting firm advising him to no longer rely on years of financial statements it prepared based on his company's valuations, given the questions about their accuracy.

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