As you might know, donald trump former President Loser of the Popular Vote (Twice) is facing a set of investigations in New York regarding his business dealings and his questionable tax dodging. It's a twofer: One investigation is pursuing the evidence as a Civil matter, another grand jury investigation is looking at the Criminal violations.
And yes, in our legal system you can get investigated in both Civil and Criminal systems over the same alleged acts (SEE: OJ Simpson's trial for murdering his ex-wife and another man AND the wrongful death lawsuits of those murders) without it violating Double Jeopardy.
The newsworthy thing happening today was that trump and his children involved with his businesses were in court arguing to prevent the Civil case from forcing them to testify to that particular grand jury. Their case was that anything they said - or didn't say - regarding civil violations could get handed over to the criminal grand jury and violate their Fifth Amendment rights over self-incrimination.
If we go to the AP News coverage for an explainer:
(New York Attorney General Letitia) James, a Democrat, is considering whether to sue Trump or his company, the Trump Organization, over the way they have valued his assets over the years. Essentially, her investigators contend Trump and his company had a “fraudulent or misleading” pattern of saying properties they own such as golf courses and skyscrapers were worth more when they wanted better deals on loans, and less when they wanted tax breaks...
Trump has bristled at allegations that he lied about his wealth. He and his lawyers have pointed out that asset valuations can be subjective. They’ve repeatedly ripped the investigation as purely political, and even sued James to try to stop her probe.
IS THERE A CRIMINAL PROBE, TOO?
Yes. The Manhattan district attorney is also investigating. A grand jury has been hearing testimony and reviewing documents covering much of the same subject material as James’ civil probe.
WHAT IS A DEPOSITION?
A deposition is like an interview, usually held in a law office or conference room, except witnesses must swear an oath and could be subject to penalties if they commit perjury. They’re typically recorded.
Depositions, frequently depicted in legal dramas as pitting one side against the other across a table, are most common in civil litigation and are often used to obtain information or get someone’s answers on the record.
WILL TRUMP HAVE TO ANSWER THE QUESTIONS?
Since anything a person says in a civil deposition could also be used against them in a criminal investigation, witnesses are free to invoke their Fifth Amendment right to remain silent at any time.
So if he chooses, Trump could simply refuse to answer many questions...
Refusing to answer the toughest questions could hurt Trump in any Civil trial. A jury is allowed to know if a person has refused to answer, and is also allowed to infer that if the person had answered the question, it might make them look bad...
The problem apparently is that trump (and his family members as well) could plead the Fifth out of a fear that any testimony will incriminate himself in the Criminal proceedings at the other end of the courthouse, and if the Criminal investigation leads to charges and a trial his pleading the Fifth can't be used against him. However, the likely Civil court case can present his refusal to testify to the jury, which makes him vulnerable to any "guilty" or "culpable" findings there.
An interesting thing about the differences between a deposition - which Civil cases rely on - vs. grand jury Criminal testimony:
IS THIS LIKE TESTIFYING BEFORE A GRAND JURY?
There are some similarities, but in New York, anyone who testifies before a grand jury automatically gets immunity from prosecution for any crimes they discuss.
For this reason, New York prosecutors are unlikely to call Trump before a grand jury...
Hence trump's argument that James' Civil investigation is a witch-hunt trying to work around the limits of a Criminal probe.
Thing is, the judge wasn't buying trump's argument (Also via AP News but article by Michael R. Sisak):
Former President Donald Trump must answer questions under oath in New York state’s civil investigation into his business practices, a judge ruled Thursday.
Judge Arthur Engoron ordered Trump and his two eldest children, Ivanka and Donald Trump Jr., to comply with subpoenas issued in December by New York Attorney General Letitia James.
Trump and his two children must sit for depositions within 21 days, Engoron said following a two-hour hearing with lawyers for the Trumps and James’ office...
21 DAYS! (checks calendar) Holy shit, that's March 10. MARK IT DOWN, PEOPLE.
“In the final analysis, a State Attorney General commences investigating a business entity, uncovers copious evidence of possible financial fraud, and wants to question, under oath, several of the entities’ principals, including its namesake. She has the clear right to do so.” Engoron wrote in his decision...
Suck it, trump.
Trump’s lawyers told Engoron that having him sit for a civil deposition now, while his company is also the subject of a parallel criminal investigation, is an improper attempt to get around a state law barring prosecutors from calling someone to testify before a criminal grand jury without giving them immunity.
“If she wants sworn testimony from my client, he’s entitled to immunity. He gets immunity for what he says, or he says nothing,” Trump’s criminal defense lawyer, Ronald Fischetti, said in the hearing, which was conducted by video conference.
Anything Trump says in a civil deposition could be used against him in the criminal probe being overseen by the Manhattan district attorney’s office. If Trump invokes the Fifth Amendment, Fischetti said it could still hurt a potential criminal defense.
“That’ll be on every front page in the newspaper in the world,” Fischetti said. “How can I possibly pick a jury in that case...?”
If you're wondering why pleading the Fifth is so damaging, you'll need to do some research on "Fifth Amendment Commies." Back in the days of the McCarthyist witch hunts for Communists, it was a favorite tactic of the Far Right to summon people before public hearings and get them to refuse to self-incriminate. Back then in the 1950s, in an era of Loyalty Oaths, people could actually lose their jobs if they admitted they were ever members of the Communist Party (which a number of people were back in the 1930s and the Great Depression) even for a day. So they plead the Fifth, after which McCarthy and his allies would accuse them anyway of being "Fifth Amendment Commies," forcing their employers to fire them anyway.
As a result, even though it's perfectly legal under the Constitution, the Fifth Amendment protection from self-incrimination has a bad reputation in the public discourse. Republicans still enjoy pummeling anyone who goes to that legal tactic in any way: trump himself bashed the Fifth Amendment as a "refuge for mobsters" and that you shouldn't plead the Fifth "if you're innocent." So this has to burn for him. You can't claim to be a winner and you can't claim the legality of your actions if you have to go on court record pleading the Fifth (and pleading it more than 500 times like son eric trump recently did).
Another thing that has to bother trump - and especially his lawyers - is how any deposition runs the risk of trump committing perjury in any way. It's been noted before: trump can contradict himself on testimony at any given time if forced to answer questions. Driven by the need to look perfect - to look like a winner at all times - trump will say one thing about an incident in one sentence and then say the exact opposite about the same incident in a later question if it makes him look good. He'll make grand statements about any meetings or conversations he has, opening himself up to counter-testimony from other people who'll remember those conversations differently... and have records to prove what happened.
If trump is compelled in the Civic deposition to say something other than pleading the Fifth, he opens himself up to the risk of countering the thousands of receipts AG James already has (especially from the Mazars accounting firm that just pushed trump under the bus).
No matter which way trump is forced to testify, he's in deep trouble.
Which is probably why he doesn't want to testify at all.
But the legal system is no longer treating him with the kid gloves they've used back when he merely filed for bankruptcy four (or six?) times back in the 1990s and 2000s.
He's in deep trouble now.
And the best thing the rest of us can do is break out the popcorn GIFs, as always.
1 comment:
And he has loans coming due and no income to renegotiate them with. And his Mazars trouble may endanger his lease on his DC hotel, which he is planning to sell for $375 million. And Deutsche Bank, the only bank he has any credit at anywhere, wants nothing to do with him any more.
Hope he enjoyed all of that high flying hubris, because the bill for it is coming due in a big way.
-Doug in Sugar Pine
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