Donald Trump's business empire may be in serious danger according to a recent court filing by the New York attorney general. We have seen this movie before, where Trump faces seemingly insurmountable legal challenges only to emerge unscathed. Trump has avoided legal accountability from the investigation of Russian election interference to the impeachment trial.
The New York Attorney General's investigation could hit Trump's wallet the hardest. The AG's investigation is civil in nature, meaning that no prison time is possible, but enormous amounts of money are at stake.
If a civil action for fraud is successful, it could expose Trump to millions of dollars in damages and even the dissolution of his business.
Subpoenas were sent to the Trump family.
The dissolution of the Trump Foundation was the result of a civil investigation by James's predecessor that was based on a "shocking pattern of illegality."
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If fraudulent conduct is laid bare in a civil action, criminal investigators may use it in a parallel criminal probe that is underway in the Manhattan District Attorney's Office. James filed a petition with the New York state supreme court to compel compliance with subpoenas she has issued for the testimony of the former president, Donald Trump Jr. The three had authority over the financial statements for the Trump Organization.
James wants evidence from these three witnesses to determine if there were misrepresentations and omissions in the valuation of assets.
Donald Trump, Allen Weisselberg, and Donald Trump Jr. were at Trump Tower in New York City.
Trump asked the court to quash the subpoenas. He has filed a lawsuit in federal court in Albany to stop the investigation in its entirety, arguing that it was brought solely for political purposes.
There are accusations against Trump.
James filed a rebuttal to the argument that an investigation is meritless. James detailed a number of her findings in her petition, such as the apparent over-valuing of at least six assets for the purposes of loan applications, insurance coverage and tax deductions. James claimed that the Trump Organization reported on its financial statements that its golf property in Scotland was worth $435 million, double its documented valuation.
There are two new reasons for Trump to be concerned about the New York legal investigations. A lot.
The value of Trump's Seven Springs Estate in Westchester County increased from $7.5 million in 1995 to $291 million in 2014, according to James. The property was valued in 2006 at $30 million. According to the petition, the size of Trump's Manhattan apartment is slightly more than 10,000 square feet. There are more examples of potential fraud in the petition.
New York law allows the state's attorney general to investigate and apply to a court for an order to stop activity that is illegal or fraudulent. The law allows the attorney general to issue subpoenas.
An overlooked mistake or fraud?
James wants the testimony of the three Trumps. The easy part in a fraud case is proving what happened. We know that the Trump Organization had representation of numbers on some documents that were not consistent with other numbers. It's difficult to prove why the numbers are different. Was it a simple mistake? Was it an accounting issue? The people who authorized the numbers are the best people to talk to about fraudulent intent.
The Trump Tower is in New York City.
The civil case should be stopped because of several reasons. James is doing an end-run around the constitutional rights of the Trumps by using a civil action.
If their statements could be used against them in a criminal case, witnesses may still assert their Fifth Amendment privileges against self-incrimination. According to James, Eric Trump invoked the Fifth Amendment 500 times during his October deposition.
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The entities that lent him money or provided insurance coverage are sophisticated financial companies that were required to do their own due diligence in making financial decisions. They should have known better than to trust him. The argument will fail. In a fraud case, the intent of the offenders is more important than the victim's.
Trump has used his favorite defense, that he is the real victim, and that the investigation is a political witch hunt. James has not helped her cause by making public statements about her efforts to take legal action against Trump, but inappropriate remarks by the attorney general does not negate fraudulent conduct.
If James files a civil action for fraud, it will be up to the court to decide if the evidence is sufficient to award damages, or if it is not.
Trump may pull off a daring rescue of his company. Maybe the movie will have a happy ending.
Barbara McQuade is a professor at the University of Michigan Law School, an NBC and MSNBC legal analyst, and a member of the USA TODAY's Board of Contributors. Follow her on social media.
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Donald Trump is investigating the NY attorney general.
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