How Trump’s legal mischief landed him in contempt of court

Former President Trump is in contempt of court.

On April 26, New York Supreme Court Judge Arthur Engoron found that “Mr. Trump willfully disobeyed a lawful court order” mandating that he comply with a subpoena issued by New York Attorney General Letitia James. This is in connection to her investigation into whether the Trump Organization committed various acts of tax and insurance fraud.

To be clear: Not only did Trump ignore the document and testimony requests from James, but he defied a court order enforcing those requests. It’s one thing to blow off a document request from another attorney — but to snub a judge’s order requiring compliance is in an altogether different plane. In the legal world, this is a big deal, because if judges’ orders can be flouted with impunity, the entire American system of laws becomes optional — and could ultimately fail.

The judge accordingly imposed a $10,000 per day fine on Trump until he complied. Trump already appealed the ruling.

No doubt, the back story here is just the latest in a lifetime of evasive maneuverings that Trump has used in cases he has initiated or defended over many years. Parties can “win” lawsuits in a number of ways — ideally, by having a strong case under the legal principles that govern and having relevant, verifiable facts on their side.

James is investigating whether Trump broke New York state’s laws banning the fraudulent inflation of property values for purposes of obtaining loans, as well as the fraudulent deflation of property values for purposes of dodging tax liability.

Trump could defeat James’s theories of liability by showing that she doesn’t have evidence that the Trump Organization committed fraud. Lawyers would call this argument a lack of proof “on the merits” — i.e., that there is not a preponderance of facts showing that the Trump Organization did these things. However, to be able to draw this conclusion, both sides must first produce the relevant documents and testimony in their possession in the first place. With rare exceptions, such as with documents protected by the attorney-client privilege, litigants don’t have the legal right to just withhold information they don’t want to turn over.

But of course, even that assumes that both sides are playing by the rules, and that if they don’t, they will be held accountable for it. Unfortunately, plenty of lawyers are willing to push these ethical boundaries to gain an advantage.

Hence, lawyers can also “win” a case by stonewalling, driving up costs through the discovery process of exchanging evidence, or even filing a counter-lawsuit with an aim of frustrating the proceedings and exhausting or financially depleting the other side. At worst, lawyers who specialize in this strategy might be willing to ignore court orders, knowing that the other side will have to go back to court and file more papers simply to get the orders enforced.

Judges are used to people following their orders, so they tend to give lawyers the benefit of the doubt and consequences don’t automatically flow from non-compliance. In general, the judge must be convinced that the “bad actor” is flouting a court order knowingly.

In this case, James served a subpoena for documents in December 2021, seeking a few broad categories of documents from Trump personally (the subpoena is not directed at the Trump Organization), including:

• Documents bearing on Trump’s review or approval of statements of financial condition. According to James, “he personally certified the accuracy of the statements to financial institutions. Evidence indicates that Mr. Trump maintained personal files and used Post-It Notes — which, obviously, stick on top of documents — to communicate with his subordinates.”
• “Documents, notes, or similar materials containing Mr. Trump’s handwriting that relate to valuation of the assets reflected on Mr. Trump’s statements of financial condition.”
• Tax, audit and insurance-related materials.

Initially, Trump moved to quash — or block — the December subpoena. He lost that motion on Feb. 17, 2022, and the court specifically ordered that Trump “comply in full” with the subpoena by March 3. Trump and James then agreed to extend that deadline to March 31, with the court’s consent.

When that day arrived, Trump turned over nothing. He instead offered up “16 pages of boilerplate objections and a four-page affirmation by counsel that states, summarily, that Mr. Trump was unable to locate any responsive documents in his custody.”  In other words, Trump again objected to the entirety of the request — and then said he has nothing to produce anyway.

Trump seemingly expects the judge to believe that he does not possess a single scrap of paper relating to the multiple loan, insurance and tax transactions regarding multiple properties and involving millions of dollars over several decades that are relevant to James’s probe.

On April 7, James took the relatively extraordinary step of asking the judge to hold Trump in contempt for failing to comply with a court order — and he granted the motion.

The judge was unamused with Trump’s approach to the matter by then, and for good reason. Trump’s “boilerplate objections” belonged, if anywhere, in the motion to quash, which Trump already lost. Additionally, Trump had already agreed to produce documents by March 31, so he waived any additional arguments that James had no right to ask for them.

The judge was also unpersuaded that Trump conducted a sufficiently thorough search to reasonably conclude that he has zero documents relating to the valuation of his properties.

“For example,” the judge noted, “Mr. Trump has not refuted, with admissible evidence, [James]’s detailed assertions that he failed to search numerous file cabinets at various locations.”

Trump did not sign an affidavit himself attesting to the thoroughness of a search, and his lawyer’s affirmation “contained only conclusory statements, rather than details of a diligent search.” The court thus found “no basis” to find that a search was conducted “in good faith.”

Trump’s appeal of the contempt of court decision is yet another delay tactic. The longer this litigation takes, the more elusive James’s goal becomes of affixing some measure of accountability for Trump under the laws of New York State.

To use the judge’s language, a “good faith” response at this point would be to produce the affidavit he requests, containing the details of the search so that the judge can rest assured that no responsive documents were overlooked.

But that’s not the route Trump is taking — and it’s hardly a surprise. Trump raised upwards of $175 million to fight the 2020 election results. A daily $10,000 fine is unlikely to make a dent in his predilections for legal mischief moving forward. What’s sad is that his lawyers are willing to go down that tube with him.

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why.” Follow her on Twitter: @kimwehle