James’ office has been investigating the Trump organization since 2019 and announced this week that the civil investigation now has a criminal component:
“We have advised the Trump Organization that our investigation into the organization is no longer of a purely civil nature. We are now actively investigating the Trump organization in a criminal capacity with the Manhattan Attorney’s Office. “
Investigating a large organization on tax and fraud issues is usually a focused environment. Real estate is an area notorious for manipulating assets and their declared value. Assets are often undervalued to reduce tax exposure or overvalued to secure bank loans. The greatest danger is that the same assets are involved in such reporting controversy.
Investigators have dismissed a number of Trump Organization officials, including Eric Trump, the son of the former president, and CFO Allen Weisselberg.
There could also be battles for privileges over requests for information from tax attorney Sheri Dillon.
One objection is that this is selective law enforcement. We discussed this issue earlier in the context of James’ National Rifle Association investigation. In this controversy, Trump attorney is likely to argue that such reporting tactics are common in the real estate space. However, selective law enforcement claims are notoriously difficult to argue. Selective law enforcement is sometimes a viable defense when used against a group with a discriminatory purpose. See United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480 (1996), Yick Wo v. Hopkins, 118, US 356 (1886). The key is that prosecution evidence is “so directed against a specific group of people … with such an unequal and oppressive spirit” that it violates the law’s guarantee of equal prosecution.
Likewise, malicious law enforcement claims are overwhelmingly rejected. This is usually the basis for a civil lawsuit after it has prevailed in the criminal system. However, it requires an extremely high level of abuse. In the criminal system, courts tend to ignore arguments based on the motivations of prosecutors. Prosecutors like James are elected and are often politically motivated. However, the courts are focused on whether the underlying allegations would constitute a crime if proved.
As a defense attorney, I would focus more on cooperation agreements at this stage, especially with Weisselberg. Tax and fraud cases are comparatively easier to prove than crimes like disability, but his collaboration could make this a blast. In addition, he could convert an investigation into the Trump Organization and conduct an investigation into Trump himself. The question is whether Trump was or should have been aware of the illegality in reporting assets.