So stupid...

How Donald Trump Played Himself

Trump’s lawyers argued politics was behind a demand for Trump to testifying about his real estate dealings. The judge didn’t buy it.

Opinion by RENATO MARIOTTI

Donald Trump has survived multiple investigations by following the same playbook: blasting them as “witch hunts” and refusing to testify under oath. His strategy backfired last week, as a New York state judge ordered him and two of his children to sit for depositions in 21 days.

It’s not unusual for people who are under investigation to face battles on multiple fronts — civil and criminal. When I was a federal prosecutor investigating complex financial crimes, I often investigated people who were also under investigation by civil authorities, like the Securities and Exchange Commission. In private practice, I have represented people who faced criminal indictments and civil cases brought by regulators at the same time.

The Trump Organization has been under investigation jointly by New York Attorney General Letitia James and the office of the Manhattan District Attorney for, in James’ words, allegedly using “fraudulent or misleading” valuations on their real estate to get loans and tax benefits. James issued subpoenas in December for Trump and Ivanka and Donald Jr. to give depositions in her civil investigation.

But Trump is not acting like someone usually does when they’re in that situation. Anyone facing a criminal investigation can exercise their Fifth Amendment right not to answer questions, and it won’t be held against them or even revealed to the jury. But in a civil case, the judge can tell the jury to draw an “adverse inference” that your answers would have been harmful to you. So the priority for anyone facing parallel criminal and civil investigations is to make sure the civil investigation is delayed until after the criminal case is wrapped up.

Obviously, that’s easier said than done. But judges will usually grant a “stay” that pauses the civil case if it looks like the criminal case is likely to result in an indictment of the defendant. Because no one but the prosecutors themselves know exactly what they’re up to, savvy defense attorneys usually make it seem like a criminal indictment is on the horizon. It might make a client’s situation seem more dire, but it’s textbook legal strategy in a situation like this.

It’s not as hard to do as you’d think, even in this case. After all, the Trump Organization’s chief financial officer, Allen Weisselberg, is under indictment. Trump’s legal team could have weaved together facts — some known by the public, but many not known, such as requests for interviews or subpoenas for documents — that suggested that the Manhattan District Attorney’s office was working towards a criminal indictment of Trump for the same subject matter under investigation by James.

But they didn’t do that. Maybe it was Trump’s ego or his insistence that his lawyers make the question of the deposition a political battle rather than a legal one. But while Trump’s attorneys argued that James was using the civil investigation to develop evidence that could be used against Trump in a criminal case, they downplayed his potential criminal liability. Alan Futerfas, a lawyer for Ivanka and Donald Trump Jr., said during the court hearing that he had no reason to believe that either of the Trump children are targets of the district attorney’s criminal investigation. Alina Habba, an attorney for Trump, spent much of her time arguing that James was pursuing a “vendetta against Donald Trump and his family to take him down” for her own political gain.

That narrative might play well on Fox News or on Twitter, but it’s not surprising that this approach did not persuade a judge who undoubtedly has come across parallel criminal and civil investigations throughout his career. Trump’s lawyers might argue that James was doing something outside the box by moving forward with a civil investigation of potential fraud while a criminal probe was underway. But as long as there is a proper basis for the civil investigation, the judge’s role is to weigh the potential of impairing the defendant’s Fifth Amendment right against the harm caused by pausing the civil investigation.

By making it sound like Trump wasn’t going to face an indictment anytime soon, Trump’s team made this balancing act easy for the judge. If no indictment is forthcoming, the Fifth Amendment issue is more remote. A judge won’t impose significant delays in a civil case based on speculation about a criminal case. Otherwise, every civil case in this context would be delayed indefinitely.

“For [James] not to have investigated the original respondents, and not to have subpoenaed the new Trump respondents, would have been a blatant dereliction of duty (and would have broken an oft-repeated campaign promise),” Judge Arthur Engoron wrote.

“Indeed, the impetus for the investigation was not personal animus, not racial or ethnic or other discrimination, not campaign promises, but was sworn congressional testimony by former Trump associate Michael Cohen that respondents were ‘cooking the books.’”

So now Trump is between a rock and a hard place. If he sits for this deposition and answers questions under oath, his words can and will be used against him by the Manhattan DA and potentially other criminal prosecutors. But if he takes the Fifth, that can be used against him in the civil case because the judge can instruct the jury to draw an “adverse inference” against him.

Trump can appeal the judge’s ruling, but unless he changes his strategy, the appeal is unlikely to change the predicament he’s in. If Trump is willing to make it seem like he has significant criminal liability and that an indictment is likely, that could change things. But there is no reason to believe he will do that.

All signs suggest that the Trump (and his son and daughter) will take the Fifth and blame James for having to do so. That might save face for them for now. But in the long run, it will hurt their position if her investigation results in a civil case against them. Right now, it looks like that is a very distinct possibility.