Trump Must Testify under Oath in Tax Fraud Case, Appeals Court Rules

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Former President Donald Trump will have to testify under oath in a civil case being pursued by New York Attorney General Letitia ‘Tish’ James, a state court ruled on Thursday.

The four-judge panel of the New York Supreme Court’s Appellate Division upheld the order of presiding Judge Arthur F. Engoron of the 1st Judicial District that Trump and his two adult children, Donald Jr. and Ivanka, must be deposed by the Attorney General’s office. James is investigating whether the Trump Organization committed bank and tax fraud by falsely inflating the value of its assets and properties – i.e., golf courses, skyscrapers, and private clubs located worldwide – to obtain loans on favorable terms, and tax breaks from the IRS.

Engoron had previously held Trump in civil contempt of court and fined him $10,000 a day for failing to comply with separate subpoenas from James’s office for documents related to the case. Trump appealed that ruling, which was later upheld by the State’s Court of Appeals, and has since complied with the ruling.

Trump’s attorneys had argued that the deposition subpoena violated his constitutional rights under the 5th Amendment against self-incrimination, given that his answers in the deposition could be used in a parallel criminal investigation being pursued by New York County District Attorney Alvin Bragg, Jr. Bragg’s investigation has indicted The Trump Organization and its Chief Financial Officer, Allen Weisselberg, for tax fraud worth over $1.7 million. That case is currently in pre-trial proceedings, with both the Organization and Weisselberg pleading not guilty.

The four-judge panel rejected this argument, stating that – in response to questions during the deposition – Trump and his children were free to plead the 5th Amendment and decline to answer questions. “The existence of a criminal investigation does not preclude civil discovery of related facts, at which a party may exercise the privilege against self-incrimination,” they wrote. They cited a submission into the record by attorneys for James’s office, which showed that Trump’s son, Eric, had pled the 5th Amendment over 500 times during a 2020 deposition before attorneys from James’s office.

The ruling raises both legal and political problems for Trump, whom lawyers have often attempted to depose in several cases both during and after his presidency. Apart from the legal exposure of having his statements used in Bragg’s criminal trial, Trump has been reluctant to plead the 5th Amendment in open court – which he has previously said “looks guilty as hell.” The U.S. Supreme Court, however, ruled in Hoffman v. United States (1951) that exercising 5th Amendment rights does not imply guilt. Nonetheless, targeting the use of the 5th Amendment was a key argument that Trump used during the 2016 election when campaigning against Hillary Clinton, claiming that her staff used it to avoid self-incrimination during the investigation into her use of a private email server.

Separately, Trump’s attorneys had also argued that James’s office was violating New York state law – which requires legal immunity for anyone testifying before a criminal grand jury – with civil subpoenas. Trump and his children plan to testify in the Weisselberg case. The argument was reportedly received with favor by Judge Ronaldo T. Acosta of the four-member bench, suggesting that Trump may have grounds to appeal the decision.

Thursday’s decision is appealable to the New York State Court of Appeals and, thereafter, the Supreme Court of the United States. Trump’s legal team had previously agreed that he would sit for a deposition within two weeks of any final appellate ruling, though have not yet announced plans to file a new appeal.

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