A judge’s refusal Thursday to throw out a subpoena seeking former President Donald Trump‘s testimony in an investigation of his business affairs won’t be the last word in the matter.
Trump‘s lawyers can appeal Judge Arthur Engoron’s decision, a process that could take some time.
If the ruling holds up, though, Trump and two of his children, Donald Trump Jr. and Ivanka Trump, would have to meet with investigators from New York Attorney General Letitia James‘ office and answer (or refuse to answer) their questions.
Here’s a look at what this is all about and why it is likely to be a headache for the Trumps, no matter what happens next:
WHAT IS THIS INVESTIGATION ABOUT?
James, a Democrat, is considering whether to sue Trump or his company, the Trump Organization, over the way they have valued his assets over the years. Essentially, her investigators contend Trump and his company had a “fraudulent or misleading” pattern of saying properties they own such as golf courses and skyscrapers were worth more when they wanted better deals on loans, and less when they wanted tax breaks.
Earlier this month, Trump’s longtime accounting firm cut ties with him, saying that a decade’s worth of financial statements they’d prepared for his company, using information Trump and his people provided, were no longer reliable.
Trump has bristled at allegations that he lied about his wealth. He and his lawyers have pointed out that asset valuations can be subjective. They’ve repeatedly ripped the investigation as purely political, and even sued James to try to stop her probe.
IS THERE A CRIMINAL PROBE, TOO?
Yes. The Manhattan district attorney is also investigating. A grand jury has been hearing testimony and reviewing documents covering much of the same subject material as James’ civil probe.
WHAT IS A DEPOSITION?
A deposition is like an interview, usually held in a law office or conference room, except witnesses must swear an oath and could be subject to penalties if they commit perjury. They’re typically recorded.
Depositions, frequently depicted in legal dramas as pitting one side against the other across a table, are most common in civil litigation and are often used to obtain information or get someone’s answers on the record.
WILL TRUMP HAVE TO ANSWER THE QUESTIONS?
Since anything a person says in a civil deposition could also be used against them in a criminal investigation, witnesses are free to invoke their Fifth Amendment right to remain silent at any time.
So if he chooses, Trump could simply refuse to answer many questions.
This protection isn’t absolute. A person’s fear of prosecution has to be reasonable. And the fear must apply to the question that has been asked. For example, Trump likely couldn’t refuse to answer a question like, “How old are you?”
Refusing to answer the toughest questions could hurt Trump in any civil trial. A jury is allowed to know if a person has refused to answer, and is also allowed to infer that if the person had answered the question, it might make them look bad.
HAS TRUMP BEEN DEPOSED BEFORE?
Yes, he’s been involved in many lawsuits over his business career and has experience with depositions. He sat for one just last October in a lawsuit filed by protesters who claim they were roughed up by Trump security personnel.
Some Trump Organization executives have already given depositions in James’ investigation, including the former president’s son, Eric Trump, and the company’s chief financial officer, Allen Weisselberg. Trump Jr. and Ivanka Trump have also been executives in the family’s business.
IS THIS LIKE TESTIFYING BEFORE A GRAND JURY?
There are some similarities, but in New York, anyone who testifies before a grand jury automatically gets immunity from prosecution for any crimes they discuss.
For this reason, New York prosecutors are unlikely to call Trump before a grand jury.
Trump’s lawyers have complained that in seeking civil testimony, James is trying to get around those protections for potential criminal defendants.
WHY IS THIS BAD FOR TRUMP?
Experts say a fraud case against Trump is no slam dunk. For Trump, though, nothing good can come out of testifying, even if he has done nothing wrong.
At best, it generates embarrassing headlines about a former president having to answer questions about his business practices.
He could get further embarrassed if he refuses to answer questions on the grounds that it might incriminate him. Some people will assume — perhaps wrongly — that it means he’s guilty.
It also isn’t likely to tamp down the growing pushback within a Republican Party he’s ruled almost singlehandedly for years.
And the worst case scenario is that he reveals wrongdoing in the deposition that becomes the basis of either a lawsuit or a criminal charge. He could also get prosecuted for perjury if he lies.