Former President Donald Trump and his two kids—business executives Don Jr., and Ivanka—must sit down with New York investigators and face questions about potential bank fraud, tax dodging, and shady real estate values.
New York State Judge Arthur F. Engoron issued his order on Thursday afternoon shortly following a two-hour court hearing in which lawyers for the Trumps did their best to smear the state’s attorney general in what could be their last-ditch effort to avoid potentially damning testimony.
"The target of a hybrid civil/criminal investigation cannot use the Fifth Amendment as both a sword and a shield; a shield against questions and a sword against the investigation itself," Engoron wrote.
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Trump, Don Jr., and Ivanka must now “appear for a deposition within 21 days” and “comply in full” by turning over documents, Engoron wrote in his order. He found the Trumps’ legal arguments “unavailing,” and affirmed the New York AG’s ability to continue investigating “copious evidence of possible financial fraud.”
“She has the clear right to do so,” the judge wrote.
That decision is sure to be appealed to New York’s higher courts. Trump’s personal defense lawyer, Ronald P. Fischetti, already indicated as much during the hearing when he preemptively asked the judge for extra time to fight for a reversal of the decision because “it has to go upstairs.”
The former president and his family are fighting an increasingly fierce legal maelstrom. Local prosecutors in Atlanta, the District of Columbia, and Manhattan are investigating abuse of power and shady business deals. All of the cases are heating up.
In this case, New York AG Letitia James has a civil probe of what she’s called “significant evidence” of financial fraud. Her lawsuit started in August 2020, when the judge had to intervene to force Trump’s son, Eric, to testify.
But fireworks started to fly in December when the AG sought to put Trump himself, Don Jr., and Ivanka in the hot seat. The Trumps refused and started to expose details about the investigation. The AG followed by extensively documenting how the company allegedly faked the value of at least six properties, including Trump’s neo-Gothic skyscraper at 40 Wall Street in Manhattan. That apparently prompted the Trump Organization’s long-time outside accountants to ditch their clients and stunningly disavow a decade of Trump’s financial statements.
On Thursday, things came to a head with the Trumps’ defense lawyers seeking to block the trio from being deposed—or temporarily halt James’ investigation.
At first, defense lawyer Alan S. Futerfas argued that any civil lawsuit deposition of the Trumps was wholly improper, given that James’ office is already helping the Manhattan DA in its criminal tax fraud case against the family company—and potentially the individual Trumps as well. He framed it as an attempt to grab their sworn testimony in a civil setting without any of the protections afforded a defendant in a criminal matter.
"They're going to use that in their criminal investigation,” Futerfas argued in court, claiming it was a “direct end-run around” the New York constitution.
"Can't they just refuse to answer? Isn't that what Eric Trump did 500 times? Why can't your clients protect themselves... by refusing to answer questions?” the judge asked.
Futerfas countered that invoking their Fifth Amendment right against self-incrimination would create “an adverse inference” that could eventually make Trump and his kids look guilty no matter what.
"The law allows that!” the judge shot back.
Then Trump’s lawyers dangled an offer no prosecutor would ever take: the Trumps will talk as long as they get total immunity for whatever they say.
It sounds crazy—even to experienced lawyers who’ve spoken to The Daily Beast—but a little-known New York law gives someone complete immunity for any crime they describe before a grand jury. It's an incentive for snitches to talk, but it’s a tool law enforcement uses selectively.
Fischetti, who’s personally representing the former president and trying to keep him from being indicted criminally in the Manhattan investigation, put it bluntly.
“They want to ask him questions? Under oath? Fine. Do it before a grand jury. Immunity,” he said. “If she wants sworn testimony from my client, he's entitled to immunity.”
In a rare move, the judge’s principal law clerk, Allison R. Greenfield, interjected to note that those free passes don’t just get handed out indiscriminately.
"I don’t understand why you’re assuming that your clients would be afforded the protections afforded witnesses to a grand jury—but not criminal targets," she said.
Meanwhile, defense lawyer Alina Habba presented the wild card by trying to convince the judge that the entire law enforcement effort is poisoned, reiterating claims that James has improperly targeted Trump to simply make good on campaign promises to take him down.
“This is about politics, your honor,” she said. “She ran a campaign for taking on Trump… she has used his name to become AG. She tried to use it to become governor. Didn't work out for her.”
Habba’s snark was not welcome, and neither were her raving speeches parroting right-wing political talking points about—of all things—Hillary Clinton.
Habba was repeatedly castigated for interrupting the judge. And although the judge readily acknowledged that James’ numerous derogatory comments about Trump made this “a whole circus,” Engoron stressed that she was exercising her First Amendment rights to free speech as a politician running for office.
She “didn’t wake up one day and decide” to take action against Trump, the judge said, pointing to the string of lawsuits from James’ predecessors at the AG’s office, which exposed the Trump University for-profit "education" scam and later dismantled his personal charity for misdeeds.
“This was Letitia James following a well-trodden footpath,” the judge said.
By contrast, the AG’s office kept it simple at the hearing, simply noting that investigators still had questions that needed to be answered—and Trump wasn’t a special case just because of his former position as president of the United States.
"Mr. Trump is a citizen. He has to come in and appear just like anyone else," said Kevin Wallace, the acting chief of the AG’s investor protection bureau.
The unassuming judge made that point himself, which he called "the 800-pound gorilla in the room."
“I'm basically trying not to do anything different. He's a citizen. He's a respondent.... why should I do anything differently?” Engoron asked.
Trump’s personal criminal defense lawyer, Fischetti, pointed out something that may indeed cause legal hiccups further down the road.
“If he goes in and follows my advice, which is you cannot answer these questions without… immunity, it'll be on every front page in the newspaper in the world! How can I possibly pick a jury in this case?” Fischetti said, raising his voice.
Fischetti also hinted that Trump may make the same mistake he’s made in the past and say too much.
“I can't even represent him in a situation like that, because he'll want to testify,” said Fischetti, who was later seen squeezing a stress ball at his desk.
The fact that Thursday’s court drama quickly morphed into a melodrama isn’t a surprise, especially given what former President Trump has demanded from the lawyers representing him, his family, and his business empire in these high-stakes investigations.
“Trump has said he wants bombast [from his attorneys] as they’re defending him against this New York ‘witch hunt.’ This is something he usually expects from his higher-profile lawyers and the ones who don’t deliver on that usually don’t stick around that long,” said a source who has spoken to Trump at length about the New York probes.
According to two other people familiar with the matter, since at least last year Trump has privately spoken about his standoff with New York prosecutors in what can sound like cartoonishly cinematic terms, such as comparing his situation to plot elements from the 1979 Norman Jewison film ...And Justice for All, starring Al Pacino.
Pacino represents a judge who raped a woman, and the movie culminates with Pacino shouting in open court that his client “should go right to fucking jail! The son of a bitch is guilty!”
The film deals with the outcomes of a corrupt American legal system, and an idealistic lawyer’s uphill battle against it. (Trump has a long, documented history of entirely missing the point of the movie he is watching—or simply getting the details completely wrong.)
Regardless, one of these sources told The Daily Beast this month that Trump has made it clear to his legal and political advisers that he craves “‘YOU’RE OUT OF ORDER’ moments in the courtroom” as the investigations in his former home state ramp up, threatening his sprawling family business.
Thursday turned out to feature some of those theatrics.
At a simultaneous virtual court hearing out of Washington, D.C., a local judge there ordered that the Trump Organization’s ex-chief financial officer must also face additional questions from investigators over his role in misspent funds at Trump’s 2017 presidential inauguration. The Trump Organization, which was recently dragged back into that lawsuit, now faces trial in September.
