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In a case trailing Trump into his post-presidency, @NewYorkStateAG James goes to court this morning seeking information for her ongoing investigation into the Trump Organization.
Today's another privilege fight.
Follow my live-feed below.
Background https://lawandcrime.com/opinion/the-trump-organization-is-trying-to-hide-behind-attorney-client-privilege-in-fraud-investigation-weve-seen-this-movie-before/
Today's another privilege fight.
Follow my live-feed below.
Background https://lawandcrime.com/opinion/the-trump-organization-is-trying-to-hide-behind-attorney-client-privilege-in-fraud-investigation-weve-seen-this-movie-before/
The Oct. 7 story by my colleague @EluraNanos followed the privilege fight involving lawyer Charles Martabano.
The recent motion preceding today's hearing involves Ralph Mastromonaco, an engineer involved with Seven Springs Estate, a 212-acre mansion in Westchester.
The recent motion preceding today's hearing involves Ralph Mastromonaco, an engineer involved with Seven Springs Estate, a 212-acre mansion in Westchester.
NYAG claims Trump Org improperly inflated Seven Springs' valuations to claim a $21.1M deduction. (Screenshot from August.)
You can read NYAG's Dec. 10 legal brief arguing Trump Organization waived all privileges regarding Mastromonaco here. https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=BVMlaNamcgIXRYAeaKHTdg==&system=prod
You can read NYAG's Dec. 10 legal brief arguing Trump Organization waived all privileges regarding Mastromonaco here. https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=BVMlaNamcgIXRYAeaKHTdg==&system=prod
The hearing is scheduled to begin in roughly 15 minutes.
Stand by.
Stand by.
Manhattan Supreme Court Judge Arthur Engoron calls the case, announcing he plans to announce a decision later today.
Appearances will be announced into the record.
Appearances will be announced into the record.
Eric Haren is up first for the NY Attorney General's office.
It's an uphill climb for him because this is a motion to reargue the matter.
It's an uphill climb for him because this is a motion to reargue the matter.
Haren notes: "There is no accountant-client privilege, and there is no engineer-professional privilege."
Recall, Trump Org is claiming privilege as to Mastromonaco, an engineer.
Recall, Trump Org is claiming privilege as to Mastromonaco, an engineer.
Haren:
Trump Org waived privilege.
The NYAG offered the Trump Org repeated opportunities to assert privilege.
Trump Org waived privilege.
The NYAG offered the Trump Org repeated opportunities to assert privilege.
Haren:
The Trump Org should not be able to use a report to gain the $21.1M tax benefit and claim privilege over the appraiser's report.
The Trump Org should not be able to use a report to gain the $21.1M tax benefit and claim privilege over the appraiser's report.
Judge Engoron appears to be impressed by Haren's arguments to revisit his old ruling:
"If Mr. Haren is correct, then I'm definitely fallible."
Then the judge pivots, asking Haren if he's arguing Trump Org waived everything.
Haren: I don't think our position is that broad.
"If Mr. Haren is correct, then I'm definitely fallible."
Then the judge pivots, asking Haren if he's arguing Trump Org waived everything.
Haren: I don't think our position is that broad.
Judge Engoron: Doesn't the fact that NYAG views Mr. Mastromonaco as "inextricable" to the process bolster the argument that he was helpful enough to the attorneys to impact privilege?
Haren replies no, comparing it to someone helping an attorney translate French.
Haren replies no, comparing it to someone helping an attorney translate French.
Judge Engoron: I hear a lot in my courtroom, or now, virtually, about prejudice... And one thing that I generally do not consider prejudice is delay.
NYAG's probe has been active almost a year.
Does the delay of the probe constitute legal prejudice?
NYAG's probe has been active almost a year.
Does the delay of the probe constitute legal prejudice?
Judge Engoron, again, appears to be impressed by AAG Haren's arguments and answers:
"I'm trying to pitch hardballs to this guy, and he's trying to turn them into softballs."
"I'm trying to pitch hardballs to this guy, and he's trying to turn them into softballs."
Attorney Amy Carlin, repping the Trump defendants for LaRocca Hornik Rosen & Greenberg, is now up.
Carlin:
Trump provided Mastromonaco documents to the judge on a motion to compel and reviewed them.
The judge combed through more than 800 documents.
"What's happening here is that the attorney general wants a second bite of the apple."
Trump provided Mastromonaco documents to the judge on a motion to compel and reviewed them.
The judge combed through more than 800 documents.
"What's happening here is that the attorney general wants a second bite of the apple."
Carlin says the judge should not consider new exhibits provided by the attorney general.
Carlin pivots to Trump's expectation of confidentiality:
"I think that's sort of a 'gotcha' issue."
NYAG argues Trump Org had no expectation of confidentiality, but its lawyers dispute this.
"I think that's sort of a 'gotcha' issue."
NYAG argues Trump Org had no expectation of confidentiality, but its lawyers dispute this.
Carlin: "At no time did we waive any privilege assertions."
Carlin: Trump did act quickly and repeatedly to protect its inquiries.
Judge Engoron asks whether the instant motion is timely, and says, after her answer, that he's not likely to find that NYAG's motion comes too late.
Judge Engoron grills Carlin on at what point Mastromonaco becomes more than just an engineer and an expert for Trump Org and attorney Martabano.
Judge Engoron: "It's sort of in the general realm of things; there's no particular date or document about when he crossed the barrier between engineer and advisor."
Carlin: I can't point to a case where a judge said, "Aha! At this moment" there was a shift.
Carlin: I can't point to a case where a judge said, "Aha! At this moment" there was a shift.
Engoron's chief clerk Allison Greenfield:
If the face of the document doesn't clearly establish the necessity [of Mastromonaco], how do the defendants meet their burden?
If the face of the document doesn't clearly establish the necessity [of Mastromonaco], how do the defendants meet their burden?
Greenfield: "I keep hearing you tell me to look back to the face of the documents."
But what extrinsic evidence is there if the face of the documents is unclear?
But what extrinsic evidence is there if the face of the documents is unclear?
Attorney George Calcagnini, repping Trump Org's land-use counsel Martabano, is up.
Calcagnini is talking about exhibits that he wants the judge to not consider.
One of the exhibits here is Mastromonaco's work authorization.
One of the exhibits here is Mastromonaco's work authorization.
Greenfield, the judge's law clerk, interrupts and tries to pin down the standard upon which the Trump defendants claim privilege.
It's either "to assist" or "is necessary," not a conflation of the two, the clerk explains.
Calcagnini demurs, leaving that position to Trump Org.
It's either "to assist" or "is necessary," not a conflation of the two, the clerk explains.
Calcagnini demurs, leaving that position to Trump Org.
Greenfield grilled Carlin on that before.
Judge Engoron tries to pin down a factual dispute, citing the saying: Everyone is entitled to his own opinion, but not his own facts.
The dispute here is...
Either Trump Org asserted privilege back in January or it didn't.
The dispute here is...
Either Trump Org asserted privilege back in January or it didn't.
Trump Org's Amy Carlin speaks at length. She does not cite an express invocation of privilege.
AAG Haren points that out in response, citing an email where his office seeks clarification on the privilege issue.
Rosen said he isn't asserting privilege in an email, AAG adds.
AAG Haren points that out in response, citing an email where his office seeks clarification on the privilege issue.
Rosen said he isn't asserting privilege in an email, AAG adds.
Trump Org's counsel Larry Rosen bristles at the email Haren just read: "That's not entirely fair, and you know that."
Rosen claims that the email was out of context, in relation to a different production demand: "What you're doing is you're sort of painting a timeline that is not accurate."
Judge Engoron asks to "get to the heart of the matter."
"Mr. Rosen, I think you said there was a subsequent conversation."
Not an email.
The judge wants names, dates and interlocutors for that assertion.
Rosen ducks.
Judge: "You're not answering my question."
"Mr. Rosen, I think you said there was a subsequent conversation."
Not an email.
The judge wants names, dates and interlocutors for that assertion.
Rosen ducks.
Judge: "You're not answering my question."
Judge asks AAG Eric Haren to recite the email with as much context as is necessary.
The letter is from Oct. 30, and AAG Haren says he's happy to submit it to the court.
Judge Engoron scolds AAG Haren: "Sometimes less is more," after the assistant AG read the letter in full rather than the relevant portion.
Trump's counsel previously accused him of providing enough context.
Damned if you do. Damned if you don't.
Trump's counsel previously accused him of providing enough context.
Damned if you do. Damned if you don't.
Judge Engoron presses Rosen on the email's apparent admission:
It seems to me the last document specifically said we're not referring to Mr. Mastromonaco.
It seems to me the last document specifically said we're not referring to Mr. Mastromonaco.
Trump Org lawyer Rosen: We meet our burden by pointing to the documents themselves.
Greenfield, judge's clerk: So the documents are all that are needed for the ruling.
Rosen: Well, context is also important.
Greenfield, judge's clerk: So the documents are all that are needed for the ruling.
Rosen: Well, context is also important.
Greenfield: I want to be clear, the documents are all that are needed for the ruling.
Rosen: In context, yes.
Rosen: In context, yes.
Rosen to AAG: "We did not withhold Mastromonaco engineering documents... You got those."
They're fighting over documents related to Mastromonaco's communications with Martabano, he says.
They're fighting over documents related to Mastromonaco's communications with Martabano, he says.
Greenfield asks Haren the same question she asked to the Trump lawyers, whether "helpful" or "necessary" is the correct standard.
Haren: I would recommend the application of a necessary standard and an in-camera review of the documents.
Haren: I would recommend the application of a necessary standard and an in-camera review of the documents.
Oral arguments are over:
Judge Engoron adjourns until 2:30 p.m. Eastern, when he will issue his ruling.
Judge Engoron adjourns until 2:30 p.m. Eastern, when he will issue his ruling.
Takeaway so far:
To clerk for Manhattan Supreme Court Judge Arthur Engoron is to gain unmatched hands-on legal experience, particularly for those who wish to take full advantage of all the opportunities the role offers.
Back again this afternoon.
To clerk for Manhattan Supreme Court Judge Arthur Engoron is to gain unmatched hands-on legal experience, particularly for those who wish to take full advantage of all the opportunities the role offers.
Back again this afternoon.
We're back!
Judge Engoron begins to recite his ruling, opening with the background of the case.
Judge Engoron's ruling, so far unspecified, spends a lot of time parsing the distinction between the "helpful" v. "necessary" standard that his clerk grilled the parties about earlier.
That is, the issue is whether engineer Mastromonaco's assistance to Trump Org helpful or necessary.
This court seems to have missed the forest for the trees, Engoron says.
This court seems to have missed the forest for the trees, Engoron says.
The court did not find any Mastromonaco documents that were "necessary" for Trump Org's lawyers.
No ruling yet, but that finding's not good for Trump Org.
No ruling yet, but that finding's not good for Trump Org.
Trump Org waived privilege with Mastromonaco, the judge says.
