Appeals judges seem skeptical as Trump family lawyer argues that NY AG subpoenas are biased and improper

• Donald Trump, Ivanka Trump, and Donald Trump, Jr. are appealing demands for their testimony from NY Attorney General Letitia James.
• In oral arguments in Manhattan Wednesday, four appeals judges sounded skeptical that James’ subpoenas are improper and biased.
• James is seeking testimony from the three 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 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 on a later date if the three Trumps must give sworn, closed-door testimony in AG Letitia James’ investigation of the family 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-years-and-counting probe of the former president’s business is a partisan vendetta. James, a Democrat, has publicly criticized the former president and GOP kingmaker since running for AG in 2018, Futerfas argued.

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.

“The attorney general is basically standing in the shoes of the district attorney,” Futerfas argued, and 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 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, they asked.

“I agree that it is proper for courts to protect against the evisceration of the privilege against self-incrimination,” Presiding Justice Rolando Acosta 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, Justice Peter Moulton, noted that the AG had been gathering evidence against the Trumps via her civil probe since 2019, when Trump’s former lawyer, Michael Cohen, testified in Congress about his ex-boss’s alleged financial wrongdoing.

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, as one example from Cohen that James has said in filings that her office is pursuing.

“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 noted 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 DA’s Office that led to the Trump Organization and its then-CFO Alan Weisselberg being indicted.

A third judge on the panel, Anil Singh, pushed back against the Trump lawyer’s claim that James is politically biased against Donald Trump.

Futerfas pointed out that James has made “years of statements” against him, calling him an “illegitimate president” and vowing to prosecute him going back to her 2018 campaign for AG. 

“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,” interrupted Singh. “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.”

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, Futerfas said.   

The last judge to speak, Justice Tanya Kennedy, brought the discussion back to the topic of the AG’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 AG. (Read the AG’s response to the Trump document subpoena appeal here.)

“They’re allowed to collect evidence, right?” Kennedy asked.

Kennedy is the same judge who turned down Donald Trump’s request last week for an immediate halt to a $10,000 contempt of court fine for failing to comply with the AG’s separate subpoena for his documents, which the former president is also appealing.

“Justice Kennedy,” Futerfas answered. “They have already said and they have never denied, whatever information they get under the guise of the civil subpoena is gonna go right to the DA’s office. They’ve never denied it.” 

And what’s wrong with that, asked the presiding justice.

“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 a costly 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.