Donald Trump subpoenaed to testify in fraud investigation

Letitia James, the New York attorney general, has been conducting a civil inquiry into Donald J. Trump's business practices. Photo / Doug Mills, The New York Times

The move by the attorney general, Letitia James, comes at a critical moment in a criminal inquiry into the former president, who could try to block the demand.

The New York state attorney general, Letitia James, is seeking to question former President Donald Trump under oath in a civil fraud investigation, according to two people with knowledge of the matter, an unusual move that comes at a critical juncture in a parallel criminal investigation into the former president.

James, whose office is also participating in the criminal investigation being run by the Manhattan district attorney, Cyrus R. Vance Jr., wants to question Trump on January 7 as part of her separate civil inquiry into his business practices.

If James finds evidence of wrongdoing in the civil inquiry, she could file a lawsuit against Trump, but she could not file criminal charges.

Her request comes as Vance is pushing to determine whether Trump or his family business, the Trump Organization, engaged in criminal fraud by intentionally submitting false property values to potential lenders. Vance, a Democrat, did not seek reelection and is leaving office at the end of the year. He will be succeeded by Alvin Bragg, a former federal prosecutor elected in November.

And because the two investigations overlap — both James and Vance have been focused on whether Trump inflated his property values to secure financing, and their offices are working together on the criminal inquiry — Trump could refuse to sit for a deposition once James formally subpoenas him. Ronald P. Fischetti, a lawyer for Trump, said in a brief interview Thursday that he would ask a judge to quash the subpoena.

He is likely to argue that Trump's testimony could be unfairly used against him in the criminal investigation, violating the constitutional right against self-incrimination. If a judge sided with James, Trump could invoke his Fifth Amendment right and decline to respond to questions.

Still, while that decision could not be used against Trump in the criminal investigation, it might harm him in James' civil inquiry. Jurors are barred from inferring anything from a defendant's refusal to testify in a criminal case, but the same is not true in a civil inquiry, where Trump's silence could be used against him.

News of the move came just hours before James, a Democrat who had announced a run for governor in New York, said that she would instead seek reelection as state attorney general.

"I have come to the conclusion that I must continue my work as attorney general, she said in a statement. "There are a number of important investigations and cases that are underway, and I intend to finish the job."

Trump has repeatedly referred to both the criminal and the civil investigations as politically motivated witch hunts and has denied all wrongdoing.

Fischetti said that the news of James' request had not come as a surprise.

"This is what the AG has been doing, working hand in glove with the DA's office," he said, implying that James' decision was political and noting that she intended to seek reelection.

Danny Frost, a spokesperson for Vance, said that James' request was "not part of the criminal investigation." He declined to elaborate and would not say whether James' office had notified Vance's prosecutors about the request to question Trump.

A spokesperson for James, whose attempt to question the former president was first reported by The Washington Post, declined to comment.

The criminal investigation, which is focused on Trump's statements about the value of his assets, has proceeded in fits and starts for more than three years and is reaching a crucial phase toward the end of Vance's tenure.

Over the last several months, the investigators have issued subpoenas for records about Trump's properties and interviewed a banker employed by the former president's top lender, Deutsche Bank.

James' civil investigation into Trump, which has been underway since March 2019, is focused on some of the same strands as the criminal investigation being overseen by Vance and has included scrutiny of similar properties, including Trump's Seven Springs Estate in Westchester County.

Last winter, James was able to obtain a number of documents relating to the inquiry after a judge twice rejected Trump's attempts to block their release. Some of the documents were relevant to a conservation easement at the Seven Springs property.

James was examining then whether the easement — a legal agreement meant to protect a land's conservation value — was legitimate and whether the Trump Organization had improperly valued the estate, allowing it a US$21 million tax deduction to which it should not have been entitled.

Over the course of the investigation, James' prosecutors have also scrutinised some of Trump's other financial transactions, including the restructuring of the Trump International Hotel & Tower in Chicago in 2010.

If Trump is deposed next year, it would be the second time he has been questioned under oath since leaving office. In October, he was questioned for hours in connection with a lawsuit filed by a group of demonstrators who said Trump's bodyguards had attacked them outside Trump Tower in 2015.

That deposition has not yet been released, and it is not clear when it might become public.

This article originally appeared in The New York Times.

Written by: Jonah E. Bromwich, Ben Protess and William K. Rashbaum
Photographs by: Doug Mills
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