September 22, 2022

AT THE CORNER OF FIFTH AND BROKE:

Trump Made N.Y. Attorney General's Fraud Case Virtually Unbeatable (RENATO MARIOTTI, 09/22/2022, Politico)

When I was federal prosecutor, I frequently prosecuted bank fraud that looked similar to what Trump and his company allegedly did. I even put away a rich real estate mogul who defrauded his lender. It's not an unusual fact pattern to see. What is impressive is the sheer size of the scheme. Trump allegedly obtained $250 million via fraud over a 10-year period, and the various machinations he used to inflate the value of his holdings was extensive. James alleges that Trump exaggerated the square footage of his triplex apartment in Trump Tower, claiming it was 30,000 square feet rather than its actual size of 11,000 square feet, and therefore should be valued at $327 million rather than $80 million. It's a price, James noted, that no apartment in New York city has ever commanded.

The attorney general's lawsuit doesn't contain damning emails or text messages, the kind that prosecutors typically rely on to prove a defendant's intent. But that might not be necessary under the New York law that James cited which focuses on repeated acts of deception. (And given that his own accounting firm Mazars USA has said it won't stand by the statements it prepared for a decade, it's going to be hard for Trump to argue the valuations were proper.)

But perhaps the biggest reason James has such a winning hand is this: Trump dealt her the cards.

In early August he invoked the Fifth Amendment some 440 times during his deposition in this case. It was undoubtedly the right move for him to make because he faces criminal investigations in multiple jurisdictions, and his words, even though they are ostensibly about matters unrelated to election interference could nevertheless be useful to prosecutors seeking to demonstrate his capacity for deception. Prosecutors could also use his words to bring criminal charges based on the alleged scheme that James uncovered.

But taking the Fifth has severe consequences in this case. Unlike in a criminal case, in a civil proceeding like the suit brought by James, the jury will likely be instructed they can infer that when Trump took the Fifth, his answer would have been adverse to him. Trump's repeated insistence that James' politically motivated suit left him no choice will not withstand the effect of the jury inferring that Trump broke the law and has no good answer to the questions he was asked.

That essentially screws Trump and his family in this case. It is no coincidence that James put in her lawsuit that when Trump was asked whether he "had an ongoing agreement from at least 2005 to the present with Mr. Weisselberg, Mr. McConney and others to prepare the Statement of Financial Condition in a manner that included false and misleading valuation statements, Mr. Trump invoked his Fifth Amendment privilege against self-incrimination and refused to answer."

In a civil case like this one, that's the ballgame. Trump, his son Eric, and others took the Fifth hundreds of times and they can expect James and her team to throw that back in their faces to prove their case. All of the other evidence is just supporting corroboration. The testimony of Trump and his family -- or lack thereof -- is the centerpiece.

Posted by at September 22, 2022 6:05 PM

  

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