Trump Org Lacks 5th Amendment Privilege But Has Options in Responding to Vance's Subpoena
Manhattan prosecutors have issued a subpoena on President Donald Trump's business in its investigation of alleged hush payments to Stephanie Clifford, the adult-film performer known as Stormy Daniels, ahead of the 2016 election.
August 02, 2019 at 05:59 PM
4 minute read
As attorneys for the Trump Organization weighed their options for responding to a Manhattan District Attorney’s Office subpoena, a major aim could be to delay production of corporate documents, court watchers told the New York Law Journal Friday.
Manhattan prosecutors have issued a subpoena on President Donald Trump’s business in its investigation of alleged hush payments to Stephanie Clifford, the adult-film performer known as Stormy Daniels, ahead of the 2016 election.
Unlike individuals, companies have no Fifth Amendment privilege against self-incrimination when responding to a subpoena. Instead, the Trump Organization could choose to move to quash the subpoena on the grounds that it is irrelevant, overbroad or subject to attorney-client privilege.
The prospects for such a maneuver would depend on the nature of the subpoena and the documents. However, it would at least have the effect of slowing down the inquiry, and any adverse ruling could be appealed, further frustrating matters.
“There’s certainly a dilatory effect,” said Michael Bachner of Bachner & Associates. “Theoretically, this could take a good amount of time.”
The New York Times on Thursday reported that Manhattan District Attorney Cyrus R. Vance Jr.’s office subpoenaed the Trumps family-controlled business, as state prosecutors revive an investigation into payments made to two women who accused the president of engaging in extramarital affairs.
According to the Times, the inquiry is in its early stages, but is examining whether any senior company officials may have falsified business records about the payments, which is a crime under New York state law.
The Manhattan District Attorney’s Office declined to comment Friday on the subpoena and whether the Trump Organization had yet responded.
Marc L. Mukasey, an attorney for the company, called the investigation a “political hit job” in a statement.
“It’s harassment of the president, his family, and his business, using subpoenas and leaks as weapons. We will respond as appropriate,” said Mukasey, a founding partner of Mukasey Frenchman & Sklaroff.
Bachner said it is “extremely rare” for a court to entirely nix subpoenas of the type Vance’s office is likely seeking. However, in addition to delay, a motion to quash would also force the government to respond by detailing the relevance of the documents or providing other information that might be helpful to the company.
Any response could come in redacted form, or prosecutors could ask to submit its filing for in camera review before the judge only, Bachner said.
Mukasey, reached by phone on Friday, declined to discuss litigation strategy, but did confirm that he accepted service of the subpoena on Thursday.
News of Vance’s probe came just two weeks after federal prosecutors in the Southern District of New York said in a court filing that they had “effectively concluded” an investigation into payments to Daniels and former Playboy model Karen McDougal, signaling that further charges were unlikely.
Roland Riopelle, of Sercarz & Riopelle, said the timing of Vance’s subpoena indicated that he may have been “acting backstop” to the U.S. attorney’s investigation. Had Vance tried to proceed in tandem with the federal probe, the district attorney would have risked being unable to bring charges on double jeopardy grounds, if the behavior overlapped.
“Now it’s time for him to go ahead,” he said.
Riopelle, meanwhile, said that the Trump Organization would use a legal challenge in an effort to delay the investigation, but he agreed the companies’ options were limited when it came to fighting the subpoena.
“I’m sure they’ll come up with creative arguments,” he said. “But those creative arguments will, I suspect, be brushed aside, and the subpoenas will be enforced.”
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