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Trump v Trump: Ex-president and niece square off in court

The case is a balance test between the public's interest in presidential tax returns and the personal nature of a decades-old privacy agreement.

MANHATTAN (CN) — Donald Trump squared off against his niece in court Thursday, aiming to advance a lawsuit that says she and The New York Times conspired against him with an “insidious plot” to obtain and publicize his financial records.

A 2001 family estate agreement lies at the heart of the case. Donald Trump says it contains a confidentiality clause that prohibits all family members, including Mary Trump, who wrote the book, “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man,” from divulging its details.

Donald Trump doesn’t dispute that she was entitled to possess them herself, but he says Mary Trump violated the 20-year-old contract when she “smuggled” records out of her attorney’s office. He seeks $100 million in damages.

The suit also names as defendants Times journalists Susanne Craig, David Barstow and Russell Buettner, who collectively won a Pulitzer Prize in 2019 for explanatory reporting for an investigation into Trump's finances. The Times has called the lawsuit “an attempt to silence independent news organizations.” 

News reporting, defense attorneys noted, has also aided the multiple legal inquiries over the former president’s businesses. The Trump Organization was convicted of tax fraud in December 2022 and sentenced last week to a $1.6 million fine, the maximum possible penalty for a corporate entity.

David McCraw, an attorney for the Times, argued Thursday that the newspapers’ reporters were doing their jobs: the constitutionally protected task of “ordinary newsgathering,” the facts of which even Donald Trump does not dispute. 

“What is most important about that article, and to these proceedings, is that it was true,” McCraw said in court. 

New York State Supreme Court Justice Robert R. Reed probed the meaning of the word “ordinary,” as Donald Trump’s attorneys argued that the exchange here was beyond the pale. 

“The line is when they were in the trenches with Ms. Trump, when she was going to her attorney’s office, when they were giving her burner phones to converse with her and walk her through the steps and have meetings with her,” said Donald Trump’s attorney Alina Habba. “The New York Times was so aggressive with something that frankly Congress couldn't get their hands on themselves.” 

Habba cited her own experience working with reporters and said she had never received a burner phone to communicate with a journalist. 

“We can get you one,” McCraw responded in turn. 

“It is not crazy for people to try to protect a source,” McCraw said. “There is nothing that is particularly interesting, and certainly nothing that is legally significant about it.” 

Habba’s co-counsel Michael Madaio, also of the firm Habba Madaio & Associates, accused the Times of “ordering” Mary Trump to get secret information to be nationally publicized. 

“You used the word ordered again,” Reed said in response. “What authority did they exercise over her, such that she, a grown woman, licensed clinical psychologist, could be compelled by Sue Craig to take any action?” 

Mary Trump is represented by Anne Champion of the firm Gibson Dunn.

Champion said it was within Mary Trump’s rights to terminate the agreement, as it doesn’t specify an end date. She called the agreement nonsensical and cited the decision by a state judge in 2020 that allowed the book to be published against opposition from Robert Trump, the former president’s younger brother, related to the same family contract.   

Plus, Champion argued, Donald Trump would have violated the terms “many times over” with his own public comments about the estate’s worth and why Mary and her brother had been excluded from their grandfather’s will. 

Defense attorneys say that, if it is allowed to proceed, Donald Trump’s suit would not survive under New York’s anti-SLAPP, short for strategic lawsuit against public participation, law, which was recently amended. Trump’s attorneys said that statute doesn’t apply since this is a private matter. 

The judge agreed that a family estate agreement is unlike, for instance, employment matters that can be seen as important to public policy. 

“It’s not the same as the CFO of a company being told that they can’t disclose anything forever,” Reed said. 

The judge didn’t quibble, however, with the idea that there is a public interest in the release of the leader of the free world’s tax returns. Trump notoriously refused to make his available despite a long tradition of presidents doing so. In the 20 years since the agreement was signed, Trump starred in 15 seasons of a reality TV show, held office and twice announced his intent to run for president.

“His finances may or may not have been a matter of interest back then just as a billionaire real estate owner, but in 2018 they would seem to be a matter of public interest,” Reed said.  “We don’t ask celebrities to hand over their taxes, but we routinely ask presidents to hand over their taxes.”

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