Thread by @nycsouthpaw

A NY state court hearing is kicking off on the NYAG's motion to compel testimony from former president Trump, Don Jr., and Ivanka, who've all moved to quash their subpoenas.

Streaming here: wowza.nycourts.gov/VirtualCourt/n… (pw 7349)

Trump Sr. is represented at the hearing by Alina Habba, a litigator with offices in Bedminster, NJ. Alan Futerfas is representing the adult Trump children; he previously repped Don Jr. before the Mueller investigation, as well as (a long time ago) a number of NY mafia figures.

Futerfas is monopolizing the beginning of the hearing to push the idea that the NYAG's investigation should be treated as a criminal matter, even though the AG's office has no criminal jurisdiction, because (he says) they're openly working hand-in-glove with the Manhattan DA.

Futerfas admits the Trump children could take the Fifth even in a civil investigation, but he's arguing it remains unfair to civilly depose them, expose them to adverse inferences, etc rather than follow the criminal procedure under NY law of taking testimony before a grand jury.

Futerfas doesn't seem to be getting very far with Judge Arthur Engeron, who keeps asking why the Trumps can't just refuse to answer questions and reminding him that adverse inferences in a civil context are what the law allows.

Alina Habba, the former president's lawyer, finally gets a chance to speak and says--for the first time today--that they're actually here seeking a stay of the civil investigation during the pendency of the criminal matter. cc @Popehat

Habba is asked whether the civil investigation is "solely" seeking evidence for a criminal case--the legal standard for a stay--and she responds with a bunch of (as far as I can tell) unconnected invective against AG Tish James for being biased against Trump.

You can argue with some sincerity that Tish James is biased, imo, but that doesn't do anything to show that she's not interested in imposing potential civil consequences like, e.g., civil fines or court-ordered dissolution of Trump entities that engaged in illegal conduct.

Another Trump lawyer, the former president's criminal attorney Ron Fischetti, is also banging his fist on the table rather than saying anything new.

Fischetti outlines a pithy rule for Trump testifying:
"He gets immunity for what he says, or he says nothing!"

In response to Engeron's inquiry, Futerfas and Fischetti both say their arguments don't rely on Trump's status as a former president, even though they previously called it a special case because of his old job.

As @rgrikard said, Habba's presentation before Judge Engeron is fairly indistinguishable in cadence and logical coherence from a Fox News hit.

"I'm not the attorney disciplinary committee," the judge repeats, after she does another five minutes on AG James' public statements.

Habba says Trump is a member of a "protected class."

"What protected class is he a member of?" the judge asks.

She does not name one.

Given the first opportunity to respond at length, Kevin Wallace, the attorney from the NYAG's office, quotes Robert Morgenthau talking about Roy Cohn:

"A man is not immune from prosecution simply because the U.S. Attorney doesn't like him."

"The evidence is irrelevant," Habba says emphatically, underlining her argument about selective prosecution in perhaps not the most effective way.

This has become an extremely New York proceeding.

Judge Engeron declines to rule during the hearing, but he says there will be a decision published by 3pm today.

Judge Engeron rules for the NYAG’s office.

https://twitter.com/shimonpro/status/1494404592272035841

Here's the decision, which orders the former president to produce documents within 14d and all three Trumps to sit for depositions within 21d: documentcloud.org/documents/2123…

Judge Engeron also denied the Trumps' motions to quash the subpoenas or, alternatively, stay the civil investigation entirely. (I don't think this can be the basis for an interlocutory appeal, but wouldn't be surprised if they try for some kind of injunction from another court.)

The judge's tidy explanation of the fundamental misunderstanding—or deliberate obtuseness—at the heart of the Trump lawyers' argument that they were somehow entitled to be called before the Manhattan DA's grand jury and receive immunity.

Correx: I was probably mistaken in doubting the availability of a direct appeal from this non-final order; NY is much more generous than the federal system in allowing them.

https://twitter.com/Too_Big_To_Fail/status/1494408560356249601

"In the final analysis, a State Attorney General commences investigating a business entity, uncovers copious evidence of possible financial fraud, and wants to question, under oath, several of the entities' principals, including its namesake. She has a clear right to do so."