Trumpland in Deep Legal Peril

Photo: Susan Walsh / AP

With the drama surrounding the FBI’s execution of a search warrant on Mar-a-Lago on Monday, it might be easy to miss the other legal developments that are currently consuming Trumpland. Today, I give a quick primer on three other matters that are likely causing significant MAGA consternation.

Trump Pled the Fifth Today in the New York State AG investigation 

After months of battling against being personally deposed, Donald Trump finally was forced to sit down under oath to answer questions about his financial empire, including the apparently fraudulent valuations that his company presented to lenders and the IRS in order to obtain favorable loans and treatment. However, and to the surprise of many, Trump chose to plead the Fifth Amendment and refused to answer any questions on risk of self-incrimination.

New York Attorney General Letitia James’s action is a civil one for damages and possible sanctions by the court, including and up to terminating the Trump Organization’s license to do business in the state. Unlike in a criminal case, however, in a civil matter a jury is permitted to draw adverse inferences from a defendant’s refusal to testify. Two of Trump’s adult children, Don. Jr. and Ivanka Trump, testified last week under oath and, according to sources, did not plead the Fifth. Trump’s decision today marks a shift in strategy and perhaps a deeper acknowledgement of his own legal peril. It also exposes him to ridicule. After all, it was Trump who famously derided witnesses who plead the Fifth, saying in 2017, “If you’re innocent, why are you pleading the Fifth?” (Trump claims that he now knows “the answer to that question,” saying in a statement, “When your family, your company and all the people in your orbit have become the targets of an unfounded, politically motivated Witch Hunt supported by lawyers, prosecutors and the Fake News Media, you have no choice.”)

Without the protection of the Fifth Amendment, Trump otherwise would have had to tread carefully during his deposition. He knows he would have had to deny that he ever had any personal knowledge of the contents of the financial statements that contain inflated valuations, basically throwing his accountants, appraisers and CFO under the bus. But after years of poring over his finances, investigators have a deep understanding of the way things operated inside the Trump Organization, and Trump would have had to take care either not to commit perjury or to give up his case and expose himself to further legal peril. After all, there is technically still a related criminal action, now mostly dormant, in the Manhattan DA’s office that could be revived if there were stronger evidence tying Trump to knowledge of the falsity of his financial statements and intentional deception.

A successful lawsuit by the New York AG’s office, which requires only a preponderance of the evidence to prevail, could result in huge fines on Trump’s business empire, either through a judgment or a crippling civil settlement. But that appears now to be a preferable outcome for Trump than going to prison, even if it means the public will forever see him as a former president under investigation who, when things got very hot, had to plead the Fifth.

Rudy Giuliani Has Been Ordered To Testify in Georgia

Down in Fulton County, Georgia, the grand jury convened by District Attorney Fani Willis has been quite active, calling in state officials including Brad Raffensperger to testify about attempts by the Trump Campaign to illegally interfere with the Georgia elections in 2020. Now its attention has turned to Trump’s attorney Rudy Giuliani, who spearheaded efforts to persuade members of the Georgia legislature to reject the election results based on claims of election fraud. Giuliani had met with state legislators three times after the election, repeating false claims and conspiracies and even accusing two Atlanta election workers of smuggling fraudulent Biden ballots into the counting room in suitcases.

The grand jury issued a subpoena for Giuliani to appear and testify, but he has resisted it to date in an almost comical effort to avoid appearing. Because Willis issued a subpoena to Giuliani in New York, a court in New York oversaw the matter. On July 13, 2022, a New York judge ordered Giuliani to appear before the grand jury in Atlanta by August 9, 2022, but Guliani’s attorney asked for a delay, claiming that he inadvertently missed the hearing because he was recovering from a medical procedure and only subsequently learned he had been ordered to appear in Atlanta. Last week, Giuliani asked Willis’ office to delay his appearance because he allegedly was unable to travel due to the recent medical procedure, but she rejected that request after her team found evidence that he had traveled since having the procedure. 

Giuliani insists he is not cleared for air travel and that his health prevents him from boarding a plane to fly down to Atlanta, despite evidence that Giuliani is otherwise carrying on with his life and had even booked plane tickets to Europe. The judge in Atlanta appeared unimpressed with this dodge. “John Madden drove all the way over the country in his big bus from stadium to stadium so one thing we need to explore is whether Mr. Giuliani could get here without jeopardizing his recovery and his health, on a train or on a bus or whatever it would be,” Judge Robert McBurney said during a hearing on a motion to delay Giuliani’s appearance. On Tuesday of this week, the judge ordered Giuliani to appear next week in person; it is unclear whether Giuliani will risk defying the order.

Trump Ally Rep. Scott Perry Had His Phone Seized

One day after the Mar-a-Lago search warrant was executed by the FBI, federal agents stopped Rep. Scott Perry while he was traveling with his family and seized his cell phone pursuant to a warrant. Perry reacted predictably, telling Fox News in an exclusive,“I’m outraged—though not surprised—that the FBI under the direction of Merrick Garland’s DOJ, would seize the phone of a sitting Member of Congress." This raises the number to four within Trump’s immediate circle who have had their devices seized under a warrant: Rudy Giuliani, John Eastman, Jeffrey Clark and now Scott Perry. 

Perry has been under scrutiny for his actions surrounding January 6, including referring election denier Clark of the Justice Department to then president Trump. Clark had sought to weaponize the Department on the side of the bogus election fraud claims by having it urge the Georgia legislature to overturn the state’s election results; Clark also sought to have Trump oust acting Attorney General Jeffrey Rosen and replace him with Clark so that the plan could be sprung into action. 

Perry attended meetings with other Congressmembers and the White House in which the rally at the Ellipse and the Eastman coup plan was discussed. Perry texted frequently with then chief of staff Mark Meadows about January 6 plans and on five occasions asked that their communications be moved to or that Meadows check his messages at Signal, which is an encrypted messaging platform. Perry also allegedly sought a pardon from Trump, a claim he vehemently denies.

It’s now clear that the legal battles in New York, Georgia and D.C. are all coming to a head. Critics of Attorney General Merrick Garland have shifted quickly from those on the left (who frequently lambasted him for his alleged inaction in the face of apparent criminality by the former administration) to those on the right (who now claim he leads a weaponized Justice Department). Defenders of the former president have openly threatened “civil war,” even in response to a warranted seizure of classified documents that the former president simply had no right to possess after leaving office. It remains to be seen whether this rhetoric will intensify along with Trump’s legal perils, or if the persistent exposure of his myriad criminal activities will lead to an erosion of support from his party. 

The tipping point might only occur with the GOP after the midterm elections. After the near-term political costs are well behind them, it might finally become clear to the GOP that supporting Trump carries with it far more political and even legal liabilities than walking away from him.