A fraud case against Trump? Not a slam dunk, experts say

For years, Donald Trump punctuated his reality TV spiels and presidential speeches with claims that his business and his many gold-plated properties were “huge,” “amazing,” the biggest and the best.

Now the New York attorney general’s office says it has uncovered evidence that his comments were not just puffery for the public. The office's civil investigation into Trump found that he and his company regularly fudged the value of assets on financial statements given to banks, insurers and tax authorities.

But that doesn’t mean the Trump Organization will be shut down, Trump Tower padlocked and the former president hauled off to prison.

Lawyers who examined the details of the allegations told The Associated Press that while Attorney General Letitia James could potentially bring a lawsuit alleging fraud, she will face two major hurdles: proving both an intent to deceive and that banks that loaned Trump money were actually fooled.

“Were you sloppy, lazy or overoptimistic about your prospects? If you were, that may be bad business, but it doesn’t necessarily rise to fraud,” said Will Thomas, an assistant professor of business law at the University of Michigan.

The attorney general, a Democrat, still has not taken any legal action against Trump in her nearly three-year investigation, but in a court filing Tuesday her lawyers argued that there was enough evidence of wrongdoing to demand that Trump and his oldest children, Donald Jr. and Ivanka, answer questions under oath.

Among the allegations, her office says Trump's company inflated its worth by doing things like stating that his Trump Tower penthouse was nearly triple its actual size and including golf-fee revenue from club members who didn't exist.

The Trump Organization said in a statement Wednesday that the investigation was “baseless” and politically motivated.

Trump's business practices are also the subject of a criminal grand jury investigation being overseen by the Manhattan district attorney.

Prosecutors have revealed little about the evidence in that case, but they have indicated in public court filings that it covers much of the same ground as the attorney general's civil probe. James has assigned some investigators to help with that investigation.

One important question is whether any misrepresentations in the company's financial statements "were intentional, knowing and intended to deceive,” said David S. Weinstein, a former federal prosecutor who reviewed the evidence for AP.

Intent is difficult to prove with real estate because it is an illiquid asset whose value, unlike publicly traded shares, isn’t being set by different investors constantly buying and selling, but by estimates, and often flawed ones.

“Even experts applying the same set of valuation tools might reasonably disagree about the ultimate valuation,” Thomas said.

Another problem is proving that banks, insurers and others doing business with the Trump Organization actually believed the false numbers.

According to James' filing, a bank said it received financial statements in 2014 from Trump’s accounting firm verifying he had a net worth of $5.8 billion and liquidity of $302 million. A loan officer involved in that transaction testified in James’ investigation that if he had been aware of misstatements on Trump’s statement of financial condition, he would have killed the deal.

Trump’s dubious financial statements also helped him secure $300 million in loans for three of his properties from Deutsche Bank, James’ office said. The bank accepted the financial statements without objection and, in internal memoranda, emphasized Trump’s reported financial strength as a factor in lending to him, James’ office said.

“The credit exposure is being recommended based on the financial profile of the Guarantor,” one of the memos said, referring to Trump.

“The way they set out the evidence says to me that she plans to conclude her investigation with some sort of lawsuit,” said former federal prosecutor Jennifer Rodgers, referring to the attorney general. “She wouldn’t characterize their case as strongly as she did if she didn’t think they were going to get there in the end and file some sort of civil action.”

One potential problem for the attorney general is that many of the company's financial statements included a line warning that the numbers were not audited, a warning that Trump lawyers are sure to highlight in any case.

Daniel Horwitz, a former Manhattan district attorney prosecutor, says its unclear that any professional lenders or insurers would have relied on those documents, or not taken them with a grain of salt.

“Were they fooled, were they duped? Did the lenders care about this? If they didn’t really care about mistakes or inaccuracies, it’s going to be pretty difficult to prove a case,” he said.

The purpose of the document filed by James's office was to show the court her reasons for compelling testimony from Trump and his oldest children.

Another son helping to run the business, Eric Trump had already given testimony in 2020 for six hours, though it's not clear what the attorney general learned from it. She said the second oldest son invoked his Fifth Amendment right against self-incrimination in response to more than 500 questions.

New York University law professor Stephen Gillers said getting the other Trumps to testify may not be the only reason for filing so detailed a document.

“What the AG means to telegraph is, ‘You can’t hide. We’ve got the goods. You’re dead.’ She may or may not be exaggerating, but Trump world has to worry that she’s not — and that’s what James wants," Gillers said. “It’s like when a country displays its guns and tanks in a military parade, meant to warn opponents, ’Don’t mess with us.’”

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