On Tuesday, New York Attorney General Letitia James, a Democrat, announced a significant change in her long-running investigation of former president Donald Trump’s business practices.
Previously, her investigation had been a civil one ― if James found wrongdoing, the worst she could do was sue Trump or his businesses.
On Tuesday, however, James’s office said in a statement it also was pursuing a criminal investigation, meaning that James could eventually file criminal charges against someone in Trump’s orbit. A spokesman for the attorney general’s office said James is working with Manhattan District Attorney Cyrus Vance, a Democrat, who has been conducting a separate criminal investigation into Trump’s finances since 2018.
Here’s what we know — and what we don’t — about these two New York state investigations.
What does this tell us about the New York attorney general’s investigation?
James has not said what triggered the change. But experts on New York law said that, in past cases, the attorney general has started criminal investigations after finding evidence that shows a suspect not only broke the law — but did so on purpose. That evidence of intent would be key to proving a criminal case.
“The civil [investigation] is really concerned with, did you break rules?” said Erin Murphy, a law professor at New York University. “And criminal is concerned with, were you trying to do wrong?”
Veterans of the New York attorney general’s staff said that this sort of move — a civil investigation becoming a criminal one — was relatively rare for that office.
“You’re getting into the internal, mental state of the actor,” said Tristan Snell, who worked in the state attorney general’s office from 2011 to 2014. To start a criminal investigation of someone, Snell said, the attorney general would want evidence that “they knew what they were doing at the time, and they went and did it anyway.”
Snell said James’s announcement on Tuesday could indicate that she has found that sort of evidence illuminating the decision-making of someone in Trump’s orbit.
Can James use the evidence she gathered in her civil investigation now, if she pursues a criminal case?
Most likely, legal experts said.
“Using civil evidence in criminal cases is fine,” said Daniel Alonso, who served as chief assistant district attorney under Vance but who left the office before the Trump investigation. One exception, Alonso said, would be if Trump could prove that James had concealed the true nature of her investigation from its targets — telling them that it was a lower-stakes civil probe, when she had always intended to use the evidence in a criminal case.
In this case, James interviewed several key Trump Organization figures, including CFO Allen Weisselberg and Trump’s son Eric, before announcing that her investigation had become a criminal one.
Legal experts say it would be an uphill battle to have that testimony thrown out.
“Most of the time, those types of claims do not prevail, unless there’s real evidence that the authorities got together and actually, affirmatively, tricked or misled the defendant,” said Miriam Baer, a professor at Brooklyn Law School.- — –
What part of Trump’s life are the district attorney and the attorney general investigating?
We don’t yet know the full scope of either investigation. From public filings, it appears both are focused on Trump’s career as a private business executive, in the decade before he became president in 2017.
The New York attorney general appeared to have taken a more targeted approach, focusing on a handful of transactions — and asking witnesses if, in those transactions, Trump had misled taxing authorities or lenders. James asked, for instance, if Trump had exaggerated the value of his Seven Springs estate outside New York to claim a $21 million tax break for preserving it as open space. And she asked if Trump had improperly avoided paying taxes when a lender forgave $100 million in debt on his Chicago tower.
Vance has sought documents on some of the same transactions that James highlighted. But his investigation has been far more broad. Vance asked for eight years’ worth of tax documents from Trump’s accountants — millions of pages that would cover many of Trump’s businesses. Vance did not obtain those records until February. Since then, he has given little hint as to what he has found in that mountain of data.
Neither James nor Vance has so far accused anyone of wrongdoing. It’s still possible that both investigations will end without anyone being sued or criminally charged.
On Wednesday, Trump attacked James’s investigation on his personal blog, calling it “an investigation that is in desperate search of a crime.”
Why is this taking so long?
In Vance’s case, the delay was caused by his focus on Trump’s tax returns. As president, Trump sued to block Vance from getting them, setting off a court fight that twice went to the Supreme Court. Vance eventually won, but Trump’s tactics kept the records out of reach for 17 months. Now, Vance has prosecutors and accountants combing through the records, but it is not clear how long that will take.
It’s less clear, from the outside, what the timeline is for James’s office. In 2019 and 2020, her investigation seemed to be moving faster than Vance’s. Her investigators obtained records by subpoena about several Trump properties, and interviewed key witnesses including Eric Trump and Weisselberg. Since August, however, James’s office had said little about the progress of its investigation — until Tuesday.
Is this development bad for Trump?
It doesn’t change anything at the moment. Although the New York attorney general says she is considering criminal charges, she hasn’t filed anything yet. And the attorney general’s statement said nothing about who might face those charges, so there’s no indication they are focused on Donald Trump.
But the move does raise potential danger for the ex-president and his inner circle.
Trump has faced civil lawsuits from the New York attorney general before — in 2013, over his collapsed Trump University, and again in 2018, over his use of funds in the Donald J. Trump Foundation charity. Both cases cost him money: Trump settled suits over Trump University for $25 million and paid $2 million in damages for his misuse of the foundation.
But neither case threatened his liberty, or that of his family. Criminal charges might. If James files charges against a member of Trump’s inner circle, it could increase pressure on that person to “flip” on Trump and testify against the former president to reduce their own legal liability.
Does this mean that the two New York investigators are now merged into one?
No. James’s office said it is still pursuing its separate civil investigation of the Trump Organization.
What’s unclear is how closely the two sets of investigators are collaborating. The statement from James’s office said investigators there were working “along with the Manhattan District Attorney,” but it didn’t provide details about whether the offices were sharing personnel or information. It’s unclear whether James’s criminal investigation should be counted as something separate or as a part of Vance’s existing probe. Vance’s office has declined to comment.
Didn’t the New York attorney general campaign on a promise to go after Trump?
Yes. As a candidate in 2018, James called Trump an “illegitimate president” and told voters that she would challenge Trump’s policies and investigate his businesses. The attorney general’s office began investigating Trump in March 2019, a few months after James took office. In court filings, James has said that that investigation was triggered by testimony from Trump’s former lawyer, Michael Cohen, who told Congress that Trump had repeatedly exaggerated the values of his assets to fool lenders and tax authorities.
Since then, both Trump and his family have said that James’s investigation is politically motivated.
“If you can run for a prosecutor’s office pledging to take out your enemies,” Trump wrote Wednesday in his blog post, “and be elected to that job by partisan voters who wish to enact political retribution, then we are no longer a free constitutional democracy.”