In battle with Attorney General Letitia James, Trump may force his nemesis Michael Cohen to testify in his defense
- A new round of subpoenas has been served by both sides in New York's massive Trump fraud lawsuit.
- Attorney General Letitia James said in court papers she may try to redepose Donald and Eric Trump.
Spring is nearly here, and like swallows returning to Capistrano, Letitia James and Donald Trump are fighting over depositions again.
With an October trial looming in the New York attorney general's massive, $250 million fraud lawsuit against the former president and his business empire, Trump's side has sent out a flurry of last-minute deposition subpoenas.
Subpoenas were served on as many as 10 people who Trump and his co-defendants may want to call at trial, including Donald Bender, the top Mazars USA accountant who for years prepared Trump's personal and corporate taxes. Rosemary Vrablic, Trump's longtime former banker at Deutsche Bank, also got one, according to court papers.
Michael Cohen, Trump's lawyer-turned-very-vocal nemesis, got one of these deposition subpoenas from Trump as well.
It was dropped off last week at his front desk, he told Insider.
"After advisement by counsel, I have decided to challenge the subpoena and intend on making a motion to quash," he said.
"The subpoena was improperly served, I am not a party to this action and the subpoena lacks any specificity as to why I am being called as a non-party witness," he added.
"It's just bad lawyering by team Trump."
The Trump subpoenas went out within the past two weeks, and at the last minute — right up against what's known as a "timely notice" deadline. It's over this and another approaching deadline that the two sides in James' lawsuit are now battling.
The deadlines are nothing new. They were agreed to by both sides back in November. Lawyers for Trump and for James had until Tuesday to give each other "timely notice" of who they will be deposing and when. And they all have until March 20 to conduct depositions.
Trump's side — or more precisely, the legal teams for Donald Trump, Donald Trump, Jr., Ivanka Trump, Eric Trump, and a dozen Trump Organization executives and corporate entities, all named as defendants in James' lawsuit — are now asking for additional time to meet that March 20 deadline.
"The current schedule imposes significant hardship," according to a recent letter filed by lawyer Clifford S. Robert on behalf the lawsuit's 16 Trump defendants.
And, in a flash-back to last spring's deposition battle, James is again accusing Trump of calculated foot-dragging.
"The Defendants' claimed hardship is self-inflicted," James counters, in papers filed by Colleen K. Faherty, a lawyer for the attorney general's office.
James' lawyers accuse Trump's side of "ongoing dilatory conduct" for waiting until they were right up against the timely-notice deadline to serve any deposition subpoenas.
James, New York's attorney general, won last year's deposition battle, if you don't count all the resulting pleading of the Fifth.
It was in the spring of 2022 when a Manhattan judge and a state appellate court ordered Donald Trump, Donald Trump Jr., and Ivanka Trump to sit for sworn depositions in the AG's Trump Organization fraud probe.
The same Manhattan judge, New York Supreme Court Justice Arthur Engoron, has for more than two years refereed these continual battles over depositions and other evidence, first in James' sprawling probe of Trump and his real-estate and golf-resort company, and now in the coming lawsuit.
Engoron has declined, for now, to grant the Trump legal teams' request for an in-person conference, in his lower Manhattan courtroom, where the two sides would have argued in person over moving or not moving the deadline.
The ball is now in the Trump's court.
His lawyers can live with whatever depositions they can conduct by March 20. Or they must file something with the court that better describes and supports their request for an "extension," as their most recent letter to Engoron vaguely calls it. Trump attorney Alina Habba did not respond to a request for comment.
There has hardly been fair chance to give this "extraordinary amount of material" the meaningful review necessary to making informed decisions about depositions, they argued.
"Under the current schedule, it is not possible for the Defendants to complete the extensive fact discovery required in this case by the March 20 deadline."
As of February 21, no depositions had been scheduled, the letter also said.
In her response, James' side — referred to as the OAG, for office of the attorney general — disputed that there's been this avalanche of new material dumped, by them, onto Trump.
"Approximately 85 percent of all documents held by OAG in this action were already available to the Trump Organization from the time they were created," the attorney general's letter pushed back.
Planning and conducting depositions is a huge part of civil trial preparation. Both sides attend and ask questions at these videotaped, under-oath questioning sessions.
The point is to avoid last minute surprises or "trial by ambush," explains Jim Sullivan, a longtime civil attorney in New York City.
Leaving discovery to the last minute is so common a defense strategy, it's almost a tradition, Sullivan said.
James' side spent more than a year deposing witnesses in the lead up to the lawsuit. Some 50 depositions were conducted, and those transcripts have all been shared with Trump's lawyers.
Yet in their own letter to the judge, James' side suggested the attorney general's office is considering re-deposing Donald Trump, Eric Trump, and Allen Weisselberg, the former Trump Organization chief financial officer now serving a five-month jail term for running a lengthy payroll-tax fraud scheme at the company.
Weisselberg's deposition, if it happens, would have to be conducted via video from jail.
Trump wanting to conduct depositions of multiple witnesses already deposed by James is also a common lawsuit defense strategy, Sullivan said, because it can be very helpful, especially if witnesses disagree with each other or contradict prior testimony.
"Defendants don't have to prove anything in most cases," Sullivan noted. "What defendants have to do is create doubt.
"So if you've got three or four people saying three or four different things, then how can we, as a plaintiff, who has the burden of proof, prove our case?" he explained.
"What you're trying to do is create confusion," he added of defending any lawsuit. "Confusion is always your friend."
James in her lawsuit accuses Trump of routinely lying about the value of his properties to secure hundreds of millions in bank loans and tax breaks. She's demanding some $250 million in penalties and a ban on the Trump family selling, buying, collecting rent, or borrowing money in New York.
Trump has denied any fraud, and he is aggressively fighting the case.
A non-jury trial has been set for October 2, "come hell or high water,"the delay-averse judge has promised.