Former President Donald J. Trump has embraced the verbal sparring of legal depositions in the past, but now faces significant risk.
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Donald J. Trump has been deposed many times in a variety of settings, but the stakes of his scheduled session with the New York attorney general’s office are uncommonly high.Credit…Erin Schaff/The New York Times
For decades, Donald J. Trump has boasted with impunity about a subject close to his heart and ego: his net worth.
“I look better if I’m worth $10 billion than if I’m worth $4 billion,” he once said when disputing his ranking on the Forbes billionaires list. In a court case, he acknowledged that when it came to describing the value of his brand, “I’m as accurate as I think I can be.” And when he described his self-aggrandizing style in his book, “The Art of the Deal,” he chose a phrase that has followed him ever since: “truthful hyperbole.”’
But now, Mr. Trump will face questions under oath about that pattern of embellishment in an investigation that may shape the future of his family real estate business. The former president and his eldest daughter, Ivanka Trump, are expected to be questioned later this month by the New York State attorney general’s office, which has been conducting a civil investigation into whether he and his company fraudulently inflated the value of his assets. His son, Donald Trump Jr., was interviewed last week, according to people with knowledge of the matter.
The attorney general, Letitia James, has argued in court papers that “fraudulent or misleading” business practices reigned at the Trump Organization for years, and has said her investigators must question the Trumps to determine who was responsible. Mr. Trump fought hard to avoid an interview, but a judge ordered him to face questioning, and investigators will seek to elicit answers that might reveal whether he approved any bogus valuations of his hotels, golf clubs and other assets.
Even a single misstep in the deposition could be costly for Mr. Trump, who is also the focus of a separate criminal investigation into the same issues. Although that investigation by the Manhattan district attorney’s office lost momentum early this year, prosecutors are planning to review Mr. Trump’s answers and any incriminating statements or clumsy comments could breathe new life into it.
Mr. Trump has derided Ms. James’s inquiry as a politically-motivated “witch hunt” and denied all wrongdoing.
The former president, who is no stranger to being deposed, will present unusual challenges and opportunities for Ms. James’s lawyers, according to accounts from people who have questioned him under oath in the past and a review of nearly a dozen depositions. He is quick to spar with his inquisitors and often struggles to restrain himself, once telling a lawyer that her questions were “very stupid.”
The interviews will mark the final stage of Ms. James’s three-year civil inquiry, teeing up one of the most consequential decisions of her tenure: whether to sue Mr. Trump and his company. Ms. James, facing the likelihood that a lawsuit would bring several more years of legal wrangling without victory assured, could first pursue settlement negotiations with the former president’s lawyers to extract a swifter financial payout.
If Ms. James does bring a lawsuit, and Mr. Trump loses at trial, a judge could impose steeper financial penalties on the former president and even restrict his business operations in New York, all in the midst of a 2024 presidential campaign that he has long hinted he will join.
Ms. James, a Democrat running for re-election, has assumed the role of Mr. Trump’s chief antagonist in New York. And in recent months, she has adopted an unusually aggressive legal strategy — including persuading a judge, Arthur F. Engoron, to hold the former president in contempt of court — as she battled to obtain his documents and testimony.
The depositions, while a victory for Ms. James, might not deliver a smoking gun. Mr. Trump could assert that he delegated the valuation of his assets to employees, and that he was not deeply involved, or he could invoke his constitutional right against self-incrimination, declining to answer at least some questions.
An empire under scrutiny. Letitia James, the New York State attorney general, is currently conducting a civil investigation into former President Donald J. Trump’s business practices. Here’s what to know:
The origins of the inquiry. The investigation started after Michael D. Cohen, Mr. Trump’s former personal lawyer and fixer, testified to Congress that Mr. Trump and his employees had manipulated his net worth to suit his interests.
Contempt ruling. A judge held Mr. Trump in contempt of court for failing to turn over documents to Ms. James, ordering him to provide the records and be fined $10,000 per day until he did so. Two weeks later, the judge withdrew the judicial order on the condition Mr. Trump paid the $110,000 fine he had accumulated over that period.
But people familiar with Mr. Trump’s approach to legal battles expressed doubt that he would keep quiet. Unlike in criminal cases, a jury in civil cases like the one Ms. James might bring can draw a negative inference from a defendant’s refusal to answer questions. And if Mr. Trump relies on his Fifth Amendment privilege — as his son Eric Trump did hundreds of times in an interview with Ms. James’s office two years ago — that could raise questions about what he might be seeking to hide and provide fresh fodder for his political opponents.
Mr. Trump himself has ridiculed witnesses for invoking their Fifth Amendment rights, once remarking that “You see the Mob takes the Fifth,” and that, “If you’re innocent, why are you taking the Fifth Amendment?”
Ms. James’s inquiry centers on whether Mr. Trump’s annual financial statements were a work of fiction — a vehicle for exaggerating the value of his real estate so that he could secure favorable loans and other financial benefits. Ms. James, who has said that Mr. Trump “got caught” using “funny numbers in his financial documents,” is examining whether Mr. Trump and his company used inflated valuations to mislead banks and the Internal Revenue Service.
In challenging Ms. James, Mr. Trump’s legal team would be likely to argue that he was entitled to some leeway in valuing his real estate, a process that is widely viewed as more art than science. Mr. Trump’s financial statements contained disclaimers that the value of his properties had not been audited or authenticated.
What we consider before using anonymous sources.
How do the sources know the information? What’s their motivation for telling us? Have they proved reliable in the past? Can we corroborate the information? Even with these questions satisfied, The Times uses anonymous sources as a last resort. The reporter and at least one editor know the identity of the source.
Mr. Trump’s lawyers might also argue that the banks that received his financial statements were hardly victims; these lenders made millions of dollars from their dealings with Mr. Trump, who recently paid off some of his largest loans.
Any lawsuit Ms. James might bring could have some holes as well: Mr. Trump famously does not use email, so any directions he might have given his employees about drafting the financial statements were probably not in writing.
Mr. Trump is no novice when it comes to facing questions under oath, having navigated numerous depositions in private lawsuits throughout his half-century in the public spotlight. When asked in 2012 how many depositions he had participated in, Mr. Trump, perhaps hyperbolically, put the number at “over 100.”
Yet the stakes are higher this time, with Mr. Trump facing scrutiny not from private lawyers but government investigators, a relatively rare occurrence for the former president. While Mr. Trump responded to questions from the special counsel, Robert S. Mueller III, he did so only in writing.
And unlike Mr. Mueller, who did not examine Mr. Trump’s personal finances, Ms. James’s lawyers have spent three years investigating the minutiae of his company’s operations.
If past depositions are any guide, Mr. Trump will be likely to strike a combative tone with Ms. James’s lawyers while portraying himself as the unwitting victim of a vindictive legal opponent. He might also lob the occasional insult at his interviewers. (In a 2011 deposition, he called a female lawyer “disgusting” after she requested a break to pump breast milk for her daughter and displayed the pump to illustrate her point.)
That apparent lack of discipline could work to Ms. James’s advantage, lawyers who have deposed him said. Mr. Trump thinks of himself as his own best advocate and might ignore advice from his attorneys to avoid directly answering questions.
“He’s completely fearless in a deposition,” said Jason A. Forge, who represented the plaintiffs in a lawsuit against Mr. Trump’s for-profit education venture, Trump University, and questioned him under oath. “He’s way more engaged than a normal witness, and you can tell he enjoys the challenge and revels in the verbal sparring,” said Mr. Forge, who predicted that there was “no way” he’ll refuse to answer questions.
In short, he added, Mr. Trump was “the dream deponent.” The lawsuit ended in a settlement.
Mr. Trump’s willingness to talk arguably hurt him in a 2007 deposition for a lawsuit that also centered on the value of his assets.
In that case, Mr. Trump had sued the journalist Timothy L. O’Brien for writing a book that cast doubt on the size of his net worth, but in the deposition, Mr. O’Brien’s lawyer coaxed out a series of admissions from Mr. Trump, who acknowledged: “Even my own feelings affects my value to myself,” and said that his net worth “can vary actually from day to day,” and that he determined it by gauging “my general attitude at the time.” He then added, “And as I say, it varies.”
“Have you ever exaggerated in statements about your properties?” Mr. O’Brien’s lawyer asked him.
“I think everyone does,” Mr. Trump replied.
A judge ultimately dismissed Mr. Trump’s lawsuit.
The former president will have an added incentive to avoid candidly answering Ms. James’s questions: the lingering criminal investigation into the very same conduct. That inquiry faded from view early this year after the district attorney, Alvin L. Bragg, declined to indict Mr. Trump.
Mr. Bragg, who could utilize Mr. Trump’s statements in the civil deposition as evidence against him in a potential criminal case, has already said that he intends to take careful stock of Mr. Trump’s answers.
In the depositions, Ms. James’s investigators are likely to home in on Mr. Trump’s involvement in his annual financial statements. Mr. Trump, who is synonymous with the Trump Organization, had authority over all its operations, and through questioning, investigators will try to deduce a connection between his actions and the “misstatements and omissions” that lawyers for Ms. James told Justice Engoron that they had found in the documents.
Her lawyers have also identified instances in which his two adult children made use of the documents: Ms. Trump submitted them to Deutsche Bank, the company’s largest lender, and Donald Trump Jr. issued financial statements related to the assets in his father’s trust. Their depositions will be likely to explore their roles at the company and their knowledge of the financial statements.
Ms. James’s investigators also are likely to press Mr. Trump about his relationship with his longtime accounting firm, Mazars USA, which compiled his annual financial statements. In February, Ms. James revealed that Mazars had cut ties with Mr. Trump.
A lawyer for Ms. James, Kevin Wallace, explained at a court hearing this spring why the investigation had taken so long, telling a judge that although the Trump Organization’s assets are as snarled and impenetrable as “a Russian nesting doll,” the attorney general’s office had managed to obtain “a very complete record.”