Special Counsel Andrew S. Amer said that the conclusion was reached after the attorney general's office reviewed affidavits filed recently by workers at Trump's business about their policies for retention and destruction of documents. That policy apparently relied on the discretion of individual employees, Amer said in a letter to the court.
"While the time frame for the policy and practice with respect to three of the departments does not reach back as early as 2010 (the beginning of the relevant period under the subpoena), we recognize that respondent's counsel must rely upon current employees to provide the required information so we are prepared to agree that the affidavits satisfy the court's order because it is not apparent what else, if anything, the respondent and his counsel can be ordered to do right now that would shed any additional light on the retention or destruction of respondent's documents," Amer wrote.
In April, New York Supreme Court Justice Arthur F. Engoron held Trump in civil contempt for flouting a subpoena and failing to turn over documents in New York state's investigation of the Trump Organization, fining him $10,000 a day until he complied.
Justice Engoron ruled during the April hearing that Trump has disobeyed the court's order compelling the former president to hand over documents related to the state's investigation. The investigators said they had evidence Trump fraudulently submitted false valuations of assets to the government and financial institutions to obtain loans and tax benefits.
Trump's response, which had come after the deadline to comply with the court order, was "woefully inadequate," the judge said. The judge said that Trump had had his opportunity to object: "That ship has already sailed and that train has already left the station."
James moved for contempt after Trump's attorneys failed to turn over a single document by the March 31 deadline. Trump argued the Trump Organization had given the state any documents the former president might have, including 10 responsive documents already produced by his business.
The contempt order was temporarily lifted when Trump filed affidavits on May 6 that Justice Engoron said "complied in significant part but not completely" with the court's order. He's racked up $110,000 in fines since the order was put in place.
While Trump and the attorney general have fought in state court over Trump's subpoena compliance, he's sought to put an end to her civil probe in federal court. A suit from the former president makes various constitutional challenges to the investigation, accusing James of violating Trump's rights under the First, Fourth and 14th amendments by pursuing groundless inquiries, attempting to infringe on his free speech and issuing unjustifiably broad subpoenas requesting information on him, his family, his businesses and his associates.
James has been investigating whether Trump inflated the value of his assets and has issued several subpoenas, including to Eric Trump, Ivanka Trump and Donald Trump Jr., in search of information on the business' valuation of assets, including Seven Springs, a property in Westchester County, New York, according to filings.
Amer's letter Tuesday noted that the attorney general has questions about the policies that are separate from the order that led to contempt, but that it would deal with those at another time.
"We have separate concerns about whether and how the described policies and practices were followed given the apparent absence in the productions of documents one would expect to see from Mr. Trump relating to his Statements of Financial Condition," he said.
Representatives for the parties did not immediately respond to requests for comments Tuesday.
New York is represented by Kevin C. Wallace, Andrew Amer, Colleen K. Faherty, Alex Finkelstein, Wil Handley, Eric R. Haren, Louis M. Solomon, Austin Thompson and Stephanie Torre of the Office of the New York State Attorney General.
Trump is represented by Alina Habba and Michael T. Madaio of Habba Madaio & Associates LLP.
The case is New York v. The Trump Organization et al., case number 451685/2020, in the Supreme Court for the State of New York, County of New York.
--Additional reporting by Frank Runyeon and Theresa Schliep. Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
