Lawyers for former President Donald Trump, Ivanka Trump and Donald Trump Jr. are appealing a New York state judge’s decision earlier this month ordering them to sit for depositions in the New York attorney general’s civil investigation into the Trump Organization.
The notice of appeal, filed on Monday, is the first step in the process. In the coming days, the Trumps are expected to file a request seeking a stay, or a delay of the deadline to comply with the depositions, to allow them time to argue the merits of the case.
Judge Arthur Engoron has ordered the Trumps to appear for a deposition by March 10.
Trump’s legal team is confronting legal trouble on a number of fronts while the former President weighs a possible White House run in 2024. The appeal in this case comes as a separate investigation by Manhattan’s district attorney is facing headwinds. Two top prosecutors resigned last week amid discussions in that office over the strength of that criminal case.
Trump and his team believe it would be hard to run for president while under criminal indictment, according to a source familiar with their thinking. With the possibility of charges fading in New York, specifically, Trump’s legal team plans to litigate against New York Attorney General Letitia James’ civil probe for as long as they can, the source said.
While they don’t think a civil case is a barrier to his candidacy, the source said they are looking at options for pleading the Fifth Amendment if Trump and his children are forced to appear for depositions.
James’ office joined that of Manhattan District Attorney Alvin Bragg, which is conducting the criminal investigation, last year. James is also conducting a parallel civil investigation.
The Trumps argue that if James wants their testimony, she should bring them before a state grand jury investigating the Trump Organization. The Trump lawyers argued she is trying to end-run the grand jury process, where witnesses receive transactional immunity for their testimony in New York.
The state judge, ruling earlier this month, rejected the Trumps’ arguments, noting they could invoke their Fifth Amendment rights against self-incrimination during their depositions and refuse to answer questions, as Eric Trump did in 2020.
But in a civil case, the jury can draw an “adverse inference” and hold it against individuals who don’t answer questions.
Donald Trump attorney Ronald Fischetti and Alan Futerfas, an attorney for Ivanka and Trump Jr., have declined to comment on whether the Trumps would answer questions or invoke the Fifth.
During a recent court hearing in the civil case, Fischetti said that if the former President declined to answer questions, it would be on the front pages of newspapers, which would make it harder for them to find an unbiased jury, if it came to that.
Fischetti claimed victory in the criminal investigation after the two prosecutors resigned. “We’re extremely happy,” he said at the time, predicting the case would be dropped soon. “Without any question, I think that’s going to happen.”
Bragg’s office, however, says its criminal investigation is continuing. Susan Hoffinger, a former prosecutor and experienced defense attorney who had recently joined his office as an executive, was appointed to lead the investigation going forward.
Trump is also facing a criminal investigation into possible election interference by the Fulton County district attorney’s office in Georgia, which is looking into actions Trump or his allies may have taken to overturn President Joe Biden’s victory in that state.
The New York district attorney’s and attorney general’s investigations are focused on the accuracy of financial statements Trump provided to lenders, insurers and others.
In January, James said her office had found “significant” evidence “indicating that the Trump Organization used fraudulent or misleading asset valuations to obtain a host of economic benefits, including loans, insurance coverage, and tax deductions.” On the financial statements, she alleged, there were numerous “misleading statements and omissions.”
The burden of proof in civil investigations is lower than for criminal investigations. To bring a criminal case, prosecutors would need evidence of Trump’s state of mind and whether he intended to mislead or defraud anyone when he made statements embellishing the value of his properties.
Bragg’s office has interviewed bankers, Trump Organization employees and Trump’s longtime accountant but it does not have a key insider cooperating with the investigation.
This story has been updated with additional details.