New York Attorney General Letitia James is not content to rest on her $454 million civil fraud trial victory, even as Trump’s debt to the state keeps snowballing, growing by a punishing $5 million in interest since February.
No, James still has some unfinished Trump business on her calendar.
And James is also intent on holding Trump’s feet to the fire, along with the feet of his lawyers, over something her office has complained about for four years: the withholding of evidence.
The integrity of the fraud trial may be at stake, she argued in a letter Tuesday night.
The AG is looking at three internal Trump Organization email chains from 2016 that were never turned over to her office during her five years of pursuing Trump for tricking banks into thinking he’s worth more than he is.
James knows the emails exist.
Manhattan prosecutors used them as evidence in sending former Trump CFO Allen Weisselberg to jail for perjury on Monday.
But the emails — in which Weisselberg and his Trump Org underlings responded to Forbes magazine questions about the value of Trump’s Manhattan triplex penthouse — were not among the 900,000 documents Trump Org turned over to James’ fraud probe.
“The Court is well within its authority to determine if Defendants and their counsel facilitated that perjury by withholding of incriminating documents,” James argued in Tuesday night’s letter.
Solving that mystery is “certainly within the power of this Court to safeguard the integrity of its own proceedings,” she argued.
A forensic review
When James first found out about the missing triplex emails in October, she immediately asked the trial judge to order a forensic review of “electronic data held by the Trump Organization for the very brief period [of] August to September of 2016,” when the emails were written.
“The failure to produce these later emails indicates a breakdown somewhere in the process of preserving, collecting, reviewing, and producing documents,” her office complained in an October 18 letter to the judge, state Supreme Court Justice Arthur Engoron.
The forensic review would be conducted by the court-imposed monitor — former federal judge Barbara Jones — whose staff at Bracewell LLP has been scrutinizing Trump’s finances since November, 2022.
Six months later, the proposed forensic review has not yet been approved by Engoron.
Instead, it’s the subject of a heated new paperwork battle between Trump’s lawyers, who oppose a review, and an attorney for James who has championed the withheld-documents cause since 2020.
“We have already raised multiple times the prospect that Defendants have withheld relevant and responsive information,” that lawyer, Senior Enforcement Counsel Kevin Wallace, wrote Engoron last week.
His April 4 letter to the judge formally asks “that the Monitor be tasked with reviewing electronic files collected by Defendants,” including those collected for production to Manhattan prosecutors.
The monitor’s review would determine if the emails “were in the possession of the Trump Organization,” and, if so, why they were never turned over.
One of Trump’s lawyers, Clifford Robert, this week spent seven single-spaced pages arguing against expanding the monitor’s role further.
“The NYAG’s astonishing request is an evident play to transform the Monitor into her own special counsel,” he wrote.
He did not immediately respond to a request for comment from Business Insider.
An already powerful monitor
Under Engoron’s most recent expansion of the monitor’s role, from March 21, Jones’ powers are already sweeping.
Trump must give the retired judge and her staff five days notice of any cash or asset transfers totaling $5 million or more, and 30 days notice of the creation or dissolution of any of the 400-plus entities under the Trump Organization umbrella.
She must also review all company financial filings, including tax returns, before they’re sent to third parties.
A history of missing documents
Trump’s alleged withholding of evidence has been an issue since at least 2020, when James first complained publicly that Trump Organization was defying her subpoenas.
For at least two years, James has appeared to be steadily building a “spoliation” case against Trump and his company. That’s the legal term for the loss or destruction of evidence that should have been preserved for a lawsuit.
As a senior lawyer for James, Wallace has repeatedly complained about missing evidence and signaled that his office may seek “relief,” meaning potential sanctions.
At a hearing in April of 2022, he compared getting Trump’s documents to “pulling teeth.”
Out of some 900,000 documents turned over, only ten were “custodial” Trump documents, meaning business files in the former president’s direct custody.
When Trump attorney Alina Habba insisted that Trump had no other personal custodial documents to turn over, Wallace told the judge, “I’ll be frank. If that’s all there is, it raises a bunch of other issues.”
Sixteen months later, when Wallace wrote the judge that the AG was ready for trial, he made sure to add that James’ office “reserves its right to seek relief after trial relating to the Defendant’s spoliation of evidence.”
Possible sanctions include more fines
Civil case law from New York allows a judge to set sanctions for spoliation that include a finding of contempt of court and any fines they see fit.
But there’s a high bar of proof, said Marc Frazier Scholl, a former financial crimes prosecutor for the Manhattan District Attorney’s Office.
The AG’s office would have to prove that Trump, Trump Org executives, and/or their defense attorneys had control over the documents being subpoenaed and destroyed or withheld them instead of turning them over.
“The first thing, if you’re seeking spoliation sanctions, is to prove there was a known obligations to keep the evidence when it was lost or destroyed,” said Scholl, who is now of counsel at Lewis Baach Kaufmann Middlemiss.
If the AG does end up seeking fines, they would likely be minimal and symbolic, he predicted.
James’ lawyers have said that many of Trump’s missing documents were ultimately successfully subpoenaed from outside witnesses who also had copies.
“They got the documents in other ways, which is why they know to ask for them specifically,” in the case of the Weisselberg emails, he added.
Ultimately, the AG’s office won the case, and won big — getting essentially everything they sued for, including the massive financial judgment.
“Would they really have gotten a larger judgment if they got more documents?” Scholl asked.
“I don’t think so,” he said. “I think this is a shot across the bow, potentially against the Trump counsel.”
