“We have informed the Trump Organization that our investigation into the company is no longer purely civil in nature,” spokesperson Fabien Levy said in the statement. “We are now actively investigating the Trump Organization in a criminal capacity, along with the Manhattan DA. We have no additional comment at this time.”
But what exactly does all of that mean?
Perhaps the most significant consensus among former New York state prosecutors I reached out to is that it makes some kind of criminal charges appear more likely than previously known. That doesn’t mean those charges will definitely come or implicate the former president personally. But it’s the kind of statement that James’s office would have known full well would land with some force — and potentially create an expectation about where all this will lead.
“My first thought was, ‘Oh they’re bringing charges,’ ” said former state and federal prosecutor Danya Perry, who has represented former Trump lawyer Michael Cohen.
She added: “This seems to telegraph that they are moving ahead with a plan to file criminal charges. The AG has seen something along the way — in the millions of pages of documents her team has reviewed and in the scores of witnesses they’ve interviewed — that has convinced her to move this case from the civil side of the ledger over to the criminal side. And she is doing it in a pretty splashy way. They don’t have nothing here.”
What the potential charges under review might be is the next valid question. The state attorney general’s office has a more limited criminal mandate than other prosecutors, and its investigation was previously geared toward potential civil penalties such as fines. Generally speaking, it would bring criminal charges involving state agencies.
“Although NYAG is best known for its civil enforcement work, it also has criminal enforcement authority in a number of areas, including securities fraud (under the Martin Act) and tax fraud,” former prosecutor Harry Sandick said in an email. “In addition, they should be able to prosecute those who make false statements in the course of their investigations.”
Tax fraud would seem to potentially come into play here, given the extensive New York Times investigation into tax schemes Trump engaged in as far back as the 1990s — schemes the Times went as far as to say included “instances of outright fraud.” But the report also noted that much of what it described happened too long ago for criminal charges to be brought.
The Martin Act is a century-old statute intended to protect investors from financial crimes, and it is regarded as one of the toughest such statutes in the country. It also, as NBC News noted two years ago, generally involves a civil investigation that morphs into a criminal one as evidence is gathered.
It’s also fair to ask why this statement was made public. Prosecutors generally don’t disclose such things and will wait for actual charges to be brought before publicly commenting. But in a high-profile case such as this, the former prosecutors say, it was potentially only a matter of time before such a phase of the investigation would be known publicly. The attorney general’s office notified the Trump Organization of the new phase last month, The Washington Post’s Shayna Jacobs and David A. Fahrenthold report.
“It’s possible that entities would start receiving subpoenas, and so the criminal nature of the investigation would inevitably leak anyway, so the attorney general wanted to get ahead of that,” said former prosecutor Rebecca Roiphe.
Others suggested the statement could serve the investigation by convincing people to cooperate.
“The timing of the announcement may serve to heighten the pressure on persons who may be on the cusp of cooperating, and who now see more clearly that a unified demonstration of coordination, pooling of resources and resolve by the two prosecutor offices intensifies the criminal probe,” said former prosecutor Bennett Gershman.
It has been evident for some time that prosecutors — specifically Vance — would like to earn the cooperation of Trump Organization Chief Financial Officer Allen Weisselberg. Last month, Vance’s office took possession of financial records from Weisselberg’s former daughter-in-law. Vance has also probed her ex-husband and Weisselberg’s son, Barry Weisselberg.
There are also the politics involved for James. She has prosecutorial powers, but she’s also a rising star in the Democratic Party. Setting herself up as the tough-nosed prosecutor going after a former president despised in her party serves to build her profile. She has hardly shied away from that, including making going after Trump part of her 2018 campaign for attorney general.
But Roiphe cautioned that this cuts both ways — particularly given her announcement of some kind of work with Vance’s office.
“There’s one other consideration: Letitia James has undermined her own credibility in this investigation because she campaigned on the promise that she would pursue the Trump family,” Roiphe said. “These campaign statements were wildly inappropriate and cast a cloud over her investigation.
“So, one question is whether her involvement in the criminal investigation will taint that case, or at least provide Trump and his associates with ammunition to undermine its legitimacy if he is ultimately charged with a crime.”
Trump has already used that argument in court while trying to withhold his tax returns from Vance. That was unsuccessful, but in a potential criminal case, those politics might matter more. Obtaining a guilty verdict involving Trump would seem difficult in any court in the country, given how devoted a large portion of the country remains to him and how much he has made the idea that he’s being politically targeted by the “deep state” an article of faith in that base.
But for now, the biggest question is just what comes next. Whatever motivations James might have for playing up her efforts, she’s also setting a potential expectation that she can actually provide the goods to back up her statements.
“It’s unusual, and unusually aggressive,” said former federal prosecutor Harry Litman, “and while this [shouldn’t] matter, she has to think she’ll look a bit foolish if no charges ensue.”