Only In New York, Kids! Trump Lawyers Go WILDING.

'He'll want to testify, and I can't have him do that.'

It's been a batshit couple days in Donald Trump's New York state case. It started Tuesday night when Trump's publicist Liz Harrington barfed out a lengthy statement on Twitter — where her client is not welcome — responding to Trump's longtime accountants at Mazars USA breaking up with him. The statement did not address allegations that Mazars is now dating Pete Davidson, but it did claim that Trump has "a great company with fantastic assets that are unique, extremely valuable, and, in many cases, far more valuable than what was listed in our Financial Statements."

That would appear to be a tacit admission that the statements are not accurate , which is an odd move since Trump is ass-deep in litigation with the attorney general of New York over whether she has a right to investigate those very financials for false valuations. Ooopsie!

He then went on to all but admit the criminal charges against Trump Org CFO Allen Weisselberg, for failing to declare and pay taxes on his fringe benefits, are true.

 The charge against a 74-year-old long-term and wonderful employee is that he did not pay taxes on a company car or company apartment (Do others pay such a tax? Did Cy Vance pay a tax on his car?), and a charge having to do with me paying for the education of his grandchildren. Murderers all over this city and they are worried about me helping with young children’s education? We may be the only company ever criminally charged by a District Attorney in a fringe benefits case. I believe Allen is innocent.
 

Bold move, fella!

In fact, AG Tish James noticed, docketing Trump's statement , along with a memo noting that it rather substantially undercuts his position that he doesn't know enough about those financials to testify about them.

"It is not unusual for parties to a legal proceeding to disagree about the facts. But it is truly rare for a party to publicly disagree with statements submitted by his own attorneys in a signed pleading—let alone one day after the pleading was filed," the Office of the Attorney General wrote, adding later, "Mr. Trump knows what the Statements of Financial Condition say, and he professes intimate knowledge of his company, its assets, and their values."

Which brings us to this morning's hearing, where the parties convened before Justice Arthur Engoron to debate a motion to quash subpoenas for testimony by Don Jr., Ivanka, and the old man himself.

It was really a perfect microcosm of Trump's constellation of lawyers. Trump was represented by an "old bull," Ron Fischetti, who blustered at the judge as if they were equals. Alina Habba, a young lawyer who does a lot of Newsmax hits and has very little relevant experience, appeared to be vamping for an audience of one. She's the one they send on doomed publicity stunts, like telling the Pulitzer Committee it has to revoke prizes for the Post and the Times , or else . The bulk of the "real" litigating, however, was done by Alan Futerfas, who is entirely competent.

Two main issues were on the agenda this morning:

First, the parties debated whether the AG is engaged in "selective prosecution" because Letitia James said a lot of nasty things about Trump and "suing" him during the campaign for her office. For the record, no one is being "prosecuted" at the moment, so what we're really arguing about is "selective investigation" or "selective civil subpoenas" — which should give you some idea of the uphill battle the Trump team has to make its case. But Habba was undaunted, shouting Fox talking points about political persecution, a plot to stop Trump becoming president again, and why does no one care about HILLARY CLINTON SPYING HENGHHH.

"That's not an issue before the court," Justice Engoron noted drily when his clerk finally managed to get Habba to stop talking by repeating at increasing volume, "Counselor, when the Judge speaks, you need to stop speaking."

Justice Engoron was similarly uninterested in entertaining Habba's arguments about prosecutorial "misconduct," because "I'm not the Attorney Disciplinary Committee."

Habba went on to make a truly bizarre argument that Trump was being discriminated against as a member of a constitutionally protected class, like race, gender, or country of origin. Which ... sorry, what ?

My contemporaneous notes:  

Court: I've asked you twice, what is the viewpoint discrimination? There's politics. She's a politician. Habba: My client is a member of a protected class. Court: ??? Habba: !!! Court: No, but seriously, what are you talking about?

— Liz Dye (@Liz Dye) 1645114533 

"My take on this is slightly different, your honor," Futerfas jumped in, trying to clean up the mess by mumbling something along the lines of "please ignore all that stuff about protected class, and let us make the less-insane (although still wrong) argument about viewpoint discrimination." (That was a bit of a paraphrase.)

The other issue involves the difference in New York law between witness testimony given in civil and criminal contexts. If District Attorney Alvin Bragg wants to haul the Trumps in to testify before a grand jury, he'll have to give them immunity for everything they testify about. But AG James is engaged in a civil inquiry, so she can compel them to show up and testify with a mere subpoena. If they don't want to give information that might harm their criminal case, they can plead the Fifth Amendment — but a fact finder is entitled to take the negative inference from this failure to testify, at least in the civil context.

Futerfas made a competent argument that James has so aligned herself with Bragg that she has blurred the distinction between the civil and criminal cases. In his telling she is de facto engaged in a criminal inquiry and using civil process to get testimony that she'd have to otherwise grant him immunity for.

The problem with this argument, as the court pointed out repeatedly, is that the Trumps would not have the right to plead the Fifth before a grand jury, and if they don't want to answer any of James's questions in a deposition, they can just decline. And Futerfas's claim that it's somehow unconstitutional to allow a negative inference from refusal to answer is probably wrong as a matter of law.

But Fischetti has an answer for that, and it is BUT NO FAIR THAT WOULD MAKE MY CLIENT LOOK REALLY BAD. Well, more or less.

Fischetti indulged himself in two mini-tantrums about the manifest unfairness of making his client — Donald Trump! The former president of the United States! — invoke his right against self-incrimination like a common criminal.

"My client can't take the Fifth Amendment. It'll be all over the papers!" Fischetti thundered, as if having to make the same decision as any other defendant amounts to some kind of unconstitutional coercion.

"He'll want to testify, and I can't have him do that," the lawyer added.

"Can't your client just plead the Fifth like his son did 500 times,"wondered the court?(Yes, actual quote.) 

"My client is not Eric Trump! My client is Donald Trump," Fischetti literally shouted.

 Toldja it was wild. 

Attorney Kevin Wallace, appearing for the OAG, didn't say a lot. He simply reiterated in measured, even tones that the AG is engaged in a civil investigation, that the Trumps retain their right against self-incrimination, that nothing his boss said prejudged the outcome of the case, that existence of parallel civil and criminal investigations on the same set of facts is entirely routine.

But he did bring up a famous quote from famed Manhattan District Attorney Robert Morgenthau of Trump's erstwhile fixer Roy Cohn.

“A man is not immune from prosecution just because a United States attorney happens not to like him," Wallace said, quoting Morgenthau. You know, a propos of nothing.

The court will issue its opinion by 3 p.m. You can read it here , by filling in the CAPTCHA, selecting "Index Search," plugging in 451685/2020, and going to the last entry in the docket.

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