- Letitia James won a $454 million judgment against Trump, her punishment for a decade of fraud.
- She and Trump are now feuding over his claims that he withheld evidence during his fraud investigation.
- New York law allows James to seek additional fines if the evidence she subpoenaed was lost or destroyed.
New York Attorney General Letitia James isn’t content to rest on her victory in a $454 million civil fraud lawsuit, even as Trump’s debt to the state continues to snowball, increasing by $5 million in interest since February.
No, James still has unfinished business on Trump on his calendar.
She asks tough questions about the $175 million bond that would protect at least part of what Trump owes New York while he appeals his trial. A hearing on the financial strength of the bond is scheduled for Monday, April 22.
And James also intends to hold Trump’s feet to the fire, as well as his lawyers, on an issue his office has been complaining about for four years: the concealment of evidence.
The integrity of the fraud trial could be at stake, she argued in a letter Tuesday evening.
The AG is reviewing three internal Trump Organization email chains from 2016 that were never forwarded to his office during his five-year pursuit of Trump for misleading banks into believing he was worth more than him.
James knows emails exist.
Manhattan prosecutors used them as evidence to send Trump’s former financial director, Allen Weisselberg, to prison on perjury charges on Monday.
But the emails — in which Weisselberg and his Trump Org subordinates responded to questions from Forbes magazine about the value of Trump’s Manhattan triplex penthouse — were not among the 900,000 documents turned over by the Trump Org to the investigation into James fraud.
“The Court has every authority to determine whether defendants and their attorneys facilitated this perjury by refusing to disclose incriminating documents,” James argued in Tuesday evening’s letter.
Solving this mystery is “certainly within the power of this Court to safeguard the integrity of its own proceedings,” she argued.
A forensic examination
When James first discovered the disappearance of the triplex emails in October, she immediately asked the trial judge to order a forensic examination of “electronic data held by the Trump Organization during the very brief period (of ) August to September 2016”, when the emails were written.
“The failure to produce these latest emails indicates a breakdown somewhere in the process of maintaining, collecting, reviewing and producing the documents,” his office complained in an Oct. 18 letter to Judge Arthur Engoron of the State Supreme Court.
The forensic review would be conducted by the court-imposed monitor — former federal judge Barbara Jones — whose staff at Bracewell LLP has been examining Trump’s finances since November 2022.
Former federal judge Barbara Jones. Drew Angerer/Getty Images
Six months later, the proposed forensic examination has not yet been approved by Engoron.
Instead, it is the subject of a heated new administrative battle between Trump’s lawyers, who oppose a review, and a lawyer for James who is making the case for documents withheld since 2020.
“We have previously repeatedly raised the possibility that defendants withheld relevant and responsive information,” that attorney, Senior Law Enforcement Attorney Kevin Wallace, wrote to Engoron last week.
His April 4 letter to the judge formally requests “that the monitor be directed to review electronic files collected by defendants,” including those collected for submission to Manhattan prosecutors.
The monitor’s review would determine whether the emails “were in the possession of the Trump Organization” and, if so, why they were never returned.
One of Trump’s lawyers, Clifford Robert, devoted seven single-spaced pages this week to arguing against expanding the monitor’s role.
“The NYAG’s astonishing request is an obvious attempt to turn the Comptroller into his own special counsel,” he wrote.
He did not immediately respond to a request for comment from Business Insider.
An already powerful monitor
As part of Engoron’s most recent expansion of the Monitor role, starting March 21, Jones’ powers are already expanded.
Trump must give the retired judge and his staff five days’ notice for any transfer of money or assets totaling $5 million or more, and 30 days’ notice for the creation or dissolution of the one of more than 400 entities under the Trump Organization umbrella.
She must also review all of the company’s financial documents, including tax returns, before they are sent to third parties.
A story of missing documents
Trump’s alleged withholding of evidence has been an issue since at least 2020, when James first complained publicly that the Trump Organization was defying his subpoenas.
This 2020 filing was the first time New York state officials publicly complained about the withholding of evidence. New York Attorney General’s Office/Business Insider
For at least two years, James has appeared to gradually build a “spoliation” case against Trump and his company. This is the legal term for the loss or destruction of evidence that should have been preserved in a trial.
As James’ lead attorney, Wallace repeatedly complained about missing evidence and signaled that his office might seek “relief,” meaning potential sanctions.
During an April 2022 hearing, he compared obtaining Trump’s documents to “pulling teeth.”
Of some 900,000 documents turned over, only ten were Trump “custody” documents, meaning business records placed in the direct custody of the former president.
When Trump’s lawyer, Alina Habba, insisted that Trump had no other personal custody documents to turn over, Wallace told the judge: “I’ll be frank. If that’s all he “Ya, that raises a whole bunch of other issues.”
Sixteen months later, when Wallace wrote to the judge that the attorney general was ready to stand trial, he made sure to add that James’ office “reserved the right to seek post-trial relief regarding the spoliation of evidence by the ‘accused”.
Possible sanctions include more fines
New York civil jurisprudence allows a judge to set penalties for spoliation, including a finding of contempt of court and any fine the judge deems appropriate.
But the evidentiary bar is high, said Marc Frazier Scholl, a former financial crimes prosecutor in 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 subpoenaed documents and destroyed or withheld them instead of turning them over.
“The first thing, if you’re seeking sanctions for spoliation, is to prove that there was a known duty to preserve 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 will likely be small and symbolic, he predicted.
James’ lawyers said many of Trump’s missing documents were ultimately subpoenaed by outside witnesses who also had copies.
“They obtained the documents through other means, so they know to ask for them specifically,” he added in the case of the Weisselberg emails.
In the end, the attorney general’s office won the case, and won big — essentially getting everything it had sued for, including the massive financial judgment.
“Would they really have gotten a broader judgment if they had gotten more documents?” asked Scholl.
“I don’t think so,” he said. “I think it’s a shot across the arc, potentially against Trump’s advice.”
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