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Trump and two of his children must be deposed by N.Y. attorney general, judge rules

Former president and his family argued civil case interferes with criminal probe of their business practices. Lawyer plans to appeal.

President Donald Trump in Marietta, Ga., last year with children Donald Jr. and Ivanka. (Mandel Ngan/AFP/Getty Images)
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NEW YORK — Former president Donald Trump and two of his adult children must give depositions in a long-running civil investigation into the family’s business practices — a ruling that means the trio could face hours of uncomfortable questioning by investigators in the near future.

Attorneys for Trump, Donald Trump Jr. and Ivanka Trump tried to get subpoenas for their testimony and related documents thrown out in court filings and at a hearing Thursday morning. They accused New York Attorney General Letitia James (D) of trying to circumvent the legal process by seeking evidence for the civil matter that she could also use to build a criminal case against the former president and his business.

James, who has called herself a partner in a criminal probe originated by the Manhattan District Attorney’s Office, is conducting a parallel civil inquiry that has covered the same subject areas: whether asset valuations Trump and the Trump Organization gave lenders, tax authorities and insurance brokers were false and amounted to wrongdoing.

Trump has sued James over the inquiry, calling it politically motivated and saying it violates his constitutional rights. That lawsuit is pending in federal court in Syracuse, N.Y.

In a written ruling Thursday, New York Supreme Court Justice Arthur Engoron denied a request by the family to quash James’s subpoenas in the civil case or delay enforcing them until the conclusion of the criminal probe. Engoron said the Trumps must sit for depositions within three weeks, and Donald Trump must provide the requested records within 14 days.

Trump attorney Ron Fischetti said he plans to appeal, however, and will ask the appeals court to stay enforcement of Engoron’s decision until the appeal is heard.

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Engoron wrote that calling the Trumps to testify for the civil matter wouldn’t trample on their protection against self-incrimination, since they can plead the Fifth Amendment. “When they are deposed, the [Trumps] will have the right to refuse to answer any questions that they claim might incriminate them, and that refusal may not be commented on or used against them in a criminal prosecution,” his opinion said.

The Post’s Jonathan O’Connell explains what happens next for the Trump family in the New York Attorney General Letitia James's civil investigation. (Video: The Washington Post, Photo: Jabin Botsford/The Washington Post)

Eric Trump, another son of Trump’s who has served as an executive at the Trump Organization, asserted his Fifth Amendment right more than 500 times when he was deposed in the civil case, James’s office said in a court filing in January.

The Trumps’ depositions probably would not be made public unless James files a lawsuit against the Trump Organization or its executives, in which case they could be disclosed in whole or in part. If James takes the depositions and then goes back to Engoron over future subpoena disputes, it’s possible she could reveal some of the testimony in those arguments.

In New York, a witness who testifies in front of a state-level grand jury is automatically given immunity from criminal prosecution. For that reason, the Trumps’ attorneys argue, it is unfair for James to seek their depositions because she could use them to implicate the Trumps in the criminal probe.

Fischetti said after the decision that he thinks the dispute over the Trumps’ testimony could eventually create new case law in New York, as a legal test of whether the subject of a civil investigation must comply with a subpoena if the same agency is considering a criminal.

On appeal, “we will prove … very clearly that [James] is acting as the district attorney,” Fischetti said.

Alan Futerfas, an attorney representing Donald Trump Jr. and Ivanka Trump, also said he expects to appeal.

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James said in a statement that “justice prevailed” with Engoron’s ruling. “No one will be permitted to stand in the way of the pursuit of justice, no matter how powerful they are,” the statement said.

In a lengthy written statement Thursday evening, Donald Trump again called James’s investigation politically motivated and said she was “doing everything within [her] corrupt discretion to interfere with my business relationships, and with the political process.”

Trump attorney Alina Habba argued at the hearing that James shouldn’t be permitted to bring her civil case because she disparaged the former president publicly while running for office.

Kevin Wallace, from the attorney general’s office, countered that “what matters is the substance of the investigation, the substance of what we’ve found.” He said the idea that the office cannot pursue both a criminal case and criminal inquiry at the same time “is not accurate.”

Trump’s use of financial statements to report his wealth to various parties is a key issue in both the civil and the criminal probe and has also been under the microscope by Congress. The scrutiny on Capitol Hill intensified this week, after a court filing by James included a report from Trump’s accounting firm, Mazars. The report said the financial statements the firm helped prepare for Trump could no longer be relied on and suggested that any recipient of the documents be alerted.

On Thursday, two congressional Democrats cited that report in asking the General Services Administration to consider terminating Trump’s federal lease for the hotel he built at the Old Post Office building in downtown Washington, a few blocks from the White House.

Trump’s company is preparing to sell the hotel lease shortly, in a deal that is expected to close this spring and is likely to net his company a profit of more than $100 million. The hotel was a popular gathering place for his supporters during his presidency.

In their letter to the GSA, Reps. Carolyn B. Maloney (N.Y.) and Gerald E. Connolly (Va.), the top Democrats on the House Oversight Committee, say that the disclosures from Mazars warrant a closer look at the lease. The lawmakers point specifically to a clause in the lease requiring that any information provided by the leaseholder to a bank “shall be true and correct in all material respects.”

That language, Maloney and Connolly wrote, provides the GSA an opportunity to address what they call “the grave damage this inappropriate lease has done to presidential ethics and integrity in government contracting.”

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The Trump Organization did not immediately respond to a request for comment on the letter to the GSA. But in a news release Tuesday, Trump pointed out that Mazars had not audited his financial statements, which the accountants sometimes disclosed in cover letters attached to the documents.

“My company has among the best real estate and other assets anywhere in the world, has significant amounts of cash, and has relatively very little debt, which is totally current,” Trump said in the release. A spokesman for Deutsche Bank, which lent Trump $170 million to develop the hotel, declined to comment.

If recent history is any guide, there is little reason to expect the agency will take action in response to the letter from Maloney and Connolly.

Democrats in Congress have been raising concerns about the hotel lease since Trump’s 2016 campaign. But the agency, under Presidents Barack Obama, Trump and now Biden, has said that the Trump Organization is in compliance with the lease and has not taken any additional action.

GSA spokeswoman Channing Grate said in a statement Thursday that the agency “has taken, and will continue to take, steps to ensure that the tenant is in compliance with the terms and conditions of the lease.”

“GSA is committed to ensuring a thorough and appropriate review process” of the proposed sale of the property, Grate said, to make sure the buyer meets basic criteria of being able to finance the purchase and manage the building.

New York Attorney General Letitia James on Jan. 3 subpoenaed Ivanka Trump and Donald Trump Jr. as part of an ongoing investigation into the Trump Organization. (Video: Reuters)

O’Connell reported from Washington.