James is seeking to enforce subpoenas her office issued in December to Trump and his two eldest children, Ivanka and Donald Trump Jr.
James, a Democrat, said her civil investigation has uncovered evidence Trump’s company used “fraudulent or misleading” valuations of assets like golf clubs and skyscrapers to get loans and tax benefits.
Trump’s lawyers told Judge Arthur Engoron during the hearing that having him sit for a civil deposition now, while his company is also the subject of a parallel criminal investigation, is an improper attempt to get around a state law barring prosecutors from calling someone to testify before a criminal grand jury without giving them immunity.
“If she wants sworn testimony from my client, he’s entitled to immunity. He gets immunity for what he says, or he says nothing,” said Trump’s criminal defense lawyer, Ronald Fischetti.
If Trump testifies in the civil probe, anything he says could be used against him in the criminal investigation being overseen by the new Manhattan district attorney, Alvin Bragg.
Trump could invoke his Fifth Amendment right to remain silent in a deposition. But Fischetti said if he did so, it could still hurt a potential criminal defense.
“If he goes in and follows my advice, which will be you cannot answer these questions without … immunity because that’s what the law provides, and take the Fifth Amendment, that’ll be on every front page in the newspaper in the world. And how can I possibly pick a jury in that case?” Fischetti said.
A lawyer for the attorney general’s office, Kevin Wallace, told the judge that it wasn’t unusual to have civil and criminal investigations proceeding at the same time.
Another Trump son, Eric Trump, and the Trump Organization’s finance chief Allen Weisselberg, have previously sat for depositions in the civil investigation and invoked their Fifth Amendment rights hundreds of times when they were questioned by investigators in 2020.