A judge in New York ruled Thursday that Donald Trump and two of his children, Donald Trump Jr. and Ivanka Trump, can be deposed as part of a civil fraud investigation conducted by the New York Attorney General's office.
Judge Arthur Engoron wrote that the Trumps' fear that their depositions might end up being used in a parallel criminal investigation did not shield them from subpoenas.
"This argument completely misses the mark. Neither (the Attorney General) nor the Manhattan District Attorney's Office has subpoenaed (the Trumps) to appear before a grand jury," Engoron wrote in his ruling.
The Trumps were challenging subpoenas sent in December seeking "testimony and documents in connection with an investigation into the valuation of properties owned or controlled by Donald J. Trump or the Trump Organization, or any matter which the Attorney General deems pertinent," according to a court filing.
Engoron wrote Thursday that Trump has 14 days to fulfill document requests and all three Trumps must appear for a deposition within 21 days. During the hearing, an attorney for Trump indicated that they would appeal such a ruling.
At Thursday's hearing, attorney Alan Futerfas, who represents Donald Trump Jr. and Ivanka Trump, accused New York Attorney General Letitia James of blurring the lines between her investigation and a criminal probe being run by the Manhattan District Attorney's office.
He noted that at least two of the attorney general's staffers are working with the Manhattan District Attorney's criminal grand jury running a similar investigation, a point that was central to the Trumps' arguments against giving depositions in this case.
In New York, grand jury testimony comes with automatic transactional immunity — meaning a person can't be prosecuted for what they tell a grand jury — but civil depositions don't. The Trump attorneys argued that the civil depositions are an attempt to get around grand jury protections.
Judge Engeron repeatedly pressed the Trump attorneys on why their clients couldn't invoke the Fifth Amendment during depositions, as Eric Trump did repeatedly during depositions for this investigation in 2020.
The Trump attorneys responded that prosecutors would be able to "draw an adverse inference" if the Trumps take the Fifth.
The judge pushed back on this repeatedly, asking at one point, "Is there any hint or suggestion that the attorney general is going to haul your clients in front of a grand jury?"
Futerfas replied, "To date, there is not." He later said there's no reason to believe either Ivanka Trump or Donald Trump Jr. are targets of the criminal probe, which has already led to charges against the Trump Organization and its chief financial officer, Allen Weisselberg.
Ronald Fischetti, an attorney for the former president, said during the hearing that he is trying to protect his client from any potential criminal prosecution, which he said would be unfounded.
"I'm trying to protect my client from being charged, on charges that are not founded at all," Fischetti said.
Fischetti said the fact that Trump is a former president makes this a "unique case." He said if Trump were to sit for a civil deposition, and invoke the Fifth Amendment, "it will be on every front page in the newspaper in the world."
"How can I possibly pick a jury in that case?" Fischetti asked.
Trump's civil attorney, Alina Habba, asked the judge to pause the attorney general's investigation altogether until the Manhattan D.A.'s probe is done. Both James and Manhattan District Attorney Alvin Bragg are Democrats. Habba implied implied that her Republican client's political leanings mean he has "protected class" status, referring to legal protection against discrimination based on race, nationality, religion, disability or other factors.
The judge appeared unconvinced by that argument.
"We all went to law school and read the cases about protected classes," Engoron said. "The traditional protected classes are race, religion, et cetera, Donald Trump doesn't fit that kind of mode or model, he's not being discriminated against based on race. Is he? Or religion, is he? He's not a protected class. If Ms. James has a thing against him, that's not in my understanding unlawful discrimination."
Trump and his attorneys have repeatedly accused James of pursuing the investigation against him as a political ploy. That accusation is at the heart of a lawsuit filed by Trump on December 21. In a phone call with CBS News that day, he called himself an "aggrieved and innocent party" and called James' probe "a hoax."
On February 9, the Trump Organization's longtime accounting firm, Mazars USA, cited revelations from the attorney general's investigation in a letter informing the Trump Organization it would no longer work for the company and that a decade's worth of financial statements Mazars produced for it "should no longer be relied upon."
During Thursday's hearing, Kevin Wallace, from the attorney general's office, spoke much less than the Trumps' attorneys, but argued that "these respondents (the Trumps) are in a very common situation, of someone who's facing potential criminal and civil liability."
"And they need to decide if they are going to testify. And if they invoke their Fifth Amendment right, your honor is correct, they may be subject to an adverse inference. That's what the law allows. They haven't shown anything here that says it's unfair. In fact, they sort of abandoned that argument," Wallace said.