Donald Trump has 5 ways to fight Letitia James’ lawsuit, ex-NY AG prosecutors told Insider.
Trump will play dumb, cry bias, and delay, delay, delay, they said.
James filed a 220-page lawsuit against Trump, his family, and the Trump Organization on Wednesday.
Donald Trump will try every legal tactic possible to save his Manhattan-based business empire from New York attorney general Letitia James’ lawsuit, former office prosecutors said.
It won’t be pretty, and barring a settlement, it won’t be fast, they said of the slow-motion legal brawl to come. But it will be heated, these New York AG veterans said of the battle over Wednesday’s lawsuit and its potentially corporation-crippling penalties.
James accused Trump of routinely lying about the value of his properties to secure hundreds of millions in bank loans and tax breaks; she wants a judge to order $250 million in penalties and to bar the Trump family from selling, buying, collecting rent, or borrowing money in New York.
The outcome is by no means assured.
Insider spoke to three defense lawyers who, before going into private practice, spent years prosecuting complex financial cases for the New York AG’s office. Here are their picks for Trump’s top 5 defenses.
Trump Defense No. 1: She’s out to get me
“I never heard of her,” Trump complained to Fox News host Sean Hannity on Wednesday, hours after the lawsuit dropped.
“But I saw this woman,” he said of James’ 2018 run for AG. “And she said, ‘We’re going to get him.'”
“Her whole campaign was based on that,” he added.
It was not the first time Trump has raised the “She’s out to get me” defense. He’s cried “bias” repeatedly and unsuccessfully in fighting James’ three-year investigation into the Trump Organization. In February he even compiled his history of anti-Trump statements into an 11-page spreadsheet.
“They’re definitely going to waste a lot of paper trying to make that argument again,” in motions to dismiss filed in the coming weeks, predicted Tristan Snell, the lead prosecutor on the AG office’s separate, successful investigation into Trump University.
“It will get them nowhere,” except for “whipping up their own supporters,” said Snell, who went on to found MainStreet.law.
“It’s certainly not going to fly with the judge,” agreed another former NY AG prosecutor, attorney and author Kenneth McCallion.
But another former AG’s office prosecutor, Armen Morian, thought the bias defense could still have legs as an argument for dismissing the lawsuit.
“It’s not trivial that she was out there saying, ‘I’m going to go after Trump,'” said Morian, who prosecuted complex financial frauds from 2006 to 2019 before founding Morian Law.
“It’s a violation of his oath of office and a violation of his due process rights,” Morian said.
Defense No. 2: real estate valuations are subjective
A property’s worth is subjective, and Trump’s side will certainly argue this in trying to beat James’ lawsuit. But you can’t simultaneously low-ball (for a tax break) and high-ball (to impress lenders) values for the same property, as James is alleging Trump did for years, the former prosecutors said.
“They can’t both be true” at the same time, said McCallion. “And you don’t have to prove which one was true and which one was false” to show fraud.
You also can’t pull a valuation out of thin air.
“There’s subjective, and there’s complete fantasyland,” Snell noted.
Fantasyland, as in Trump’s objectively false 2015 claim that his Trump Tower triplex on Manhattan’s Fifth Avenue spanned 33,000 square feet. It was actually 11,000 square feet, a whopper of an exaggeration first reported by Forbes.
Tripling his square footage let Trump claim his triplex was worth $327 million in collateral for a bank loan.
It’s an “absurd” appraisal, James told reporters in unveiling the lawsuit, given that at the time, “only one apartment in New York City had ever sold for even $100 million.”
Morian countered, though, that it’s common real estate practice for businesses to seek out and to use very different valuations, depending on whether you’re trying to lower your taxes or impress a bank.
“So long as the valuation is based on some rationale, you are not required to use the same methodology” for every appraisal, Morian argued.
“The methodology could have been wrong. The methodology could have been optimistic. But that doesn’t make a fraudulent statement,” he said.
“You can’t say your 3-year-old daughter’s version of the Mona Lisa is worth the same as the Mona Lisa,” Morian explained. “That would be ridiculous. And you can’t say the Mona Lisa is worth $3. But basically, there’s a broad range of discretion for how you value assets.”
Defense No. 3: I just signed whatever they gave me
Trump has claimed he signed all the questionable paperwork without really looking at it.
“If he wasn’t a sophisticated, or purported sophisticated, investor and developer that might be true,” said McCallion, who heads McCallion & Associates and is the author of “Profiles in Cowardice in the Trump Era.”
“But Trump was a very hands-on guy, for better or worse, in the Trump Organization world.”
It’s also safe to assume, Snell said, that Trump was repeatedly asked in his August deposition whether, in fact, he blindly relied on his appraisers and accountants.
But instead of answering, Trump repeatedly pleaded the Fifth. Should the suit go to trial, case law allows the judge to infer that Trump was hiding the truth.
“Answering ‘I plead the Fifth’ translates out to, ‘No, it was me,'” standing behind all the funny math, Snell said.
Still, the judge must at least weigh any “I just signed what they gave me” defense, Morian said.
“Does that absolve him? Probably not,” Morain said. “But it can be a very sound factual defense that the courts would have to consider.”
Defense No. 4: I never said you should trust me
“We have a disclaimer, right on the front,” Trump told Hannity of the financial statements James is suing over, the ones she says wildly exaggerated his worth.
“And it basically says, you know, get your own people. You’re at your own risk … so don’t rely on the statement that you’re getting,” Trump said his disclaimers warn, “because it may not be accurate. It may be way off.”
Besides, Trump argued, the banks that loaned him money “have the best lawyers in the world.” They should know better than to take him at his word.
“She’s trying to defend banks that had unbelievable legal talent,” Trump complained.
Trump actually has a point, Morian argued.
“All you have to do is put in a tiny footnote” in a financial statement, putting the bank on notice to double-check the numbers, “and that can be enough” to avoid liability for fuzzy math, he said.
“Because it’s assumed that the reader of the financial statement is a sophisticated party,” Morian added. Besides, “I bet you all these [banks] were applying a ‘Trump haircut’ — they were assuming he was exaggerating shit by, say, 30 percent, who knows.”
Defense No. 5: No victim, no harm, no foul
“By the way,” Trump also told Hannity, “I paid ’em back … They didn’t lose money … the banks made a lot of money. She’s trying to defend banks that got paid off.”
It’s the no victim, no harm, no foul defense.
However, as Trump White House budget director Mitch Mulvaney tweeted Friday, “Seriously, who is the victim here? If the banks thought they had been defrauded, they could sue on their own.”
Morian sees their point, too.
“There’s a yawning silence” from the banks Trump allegedly tricked into lending to him, he noted.
And it’s almost like James has filed what’s known as a private claim, Morian added — “like the attorney general is suing on behalf of Deutsche Bank. She has no standing to do that.”
“That will be front and center in the motions to dismiss,” agreed McCallion. “It will be her burden to show she has authority to bring this case.”
But James isn’t calling the banks victims.
The victims, she tweeted on Wednesdayare those she is sworn to protect, the people of New York state.
“Trump’s crimes are not victimless,” she told reporters.
“When the well-connected and powerful break the law to get more money than they’re entitled to, it reduces resources available to working people, small businesses, and taxpayers.”
Read the original article on Business Insider