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After Donald Trump left New York and flew to Florida on Wednesday afternoon, the New York County Courthouse—where Trump, two of his sons, and two of his former executives stand accused in a civil fraud case—was much calmer. When I arrived at 60 Centre Street, on Thursday morning, for the fourth day of the trial, there was only one television camera standing outside; previously, there had been more than a dozen. The improvised press pen outside Courtroom 300, where Trump had repeatedly railed against the judge and the prosecutor, calling the case a “scam” and a “sham,” was empty. The courtroom itself was far from full.
Trump wasn’t the only notable absentee. Chris Kise, his lead attorney, wasn’t present that morning, either. But the New York attorney general, Letitia James, whose office is bringing the case, was sitting in the front row of the spectators’ section. Also present, on the witness stand for a fourth successive day, was Donald Bender, recently retired from the accounting firm Mazars, which for many years was in charge of compiling the Trump Organization’s notorious annual “Statements of Financial Condition,” which purported to show that Trump was a genuine gazillionaire. After Judge Arthur F. Engoron finally let Bender step down, he was replaced by Jeffrey McConney, the former comptroller of the Trump Organization, who helped put together the documents that Mazars used to compile the “S.O.F.C.s,” as they are referred to in court.
In a pretrial ruling, Judge Engoron agreed with James’s office that the defendants persistently inflated the value of Trump’s assets, saying this amounted to fraud under a long-standing New York statute, Executive Law 63. But there are six more claims for the court to decide upon, including falsifying business records, issuing false financial statements, and committing insurance fraud. The A.G.’s office is also asking the court to bar Trump and his sons from running businesses in New York and to impose a financial penalty of up to two hundred and fifty million dollars. Engoron has said that, in order for the government to prove the remaining claims, it must show two things: that the defendants acted with intent and that their actions were material—that their exaggerations were significant.
In other words, there are still weighty issues to be decided on the basis of the testimony and documentary evidence that both sides present. Trump surely doesn’t want to be drummed out of New York or hit with a huge fine, and his lawyers are trying to prevent that from happening. But, even in the former President’s absence, the trial is proceeding in the shadow of his efforts to exploit it for political purposes and his assault on some of the country’s basic institutions, including its criminal-justice system. On Thursday, he posted on his social-media site Truth Social: “This ridiculous suit should be immediately dropped. Appellate Division should intercede. These people, like Jack Smith, are DERANGED!”
McConney, the next person to testify, was called as a government witness, but he is also a defendant in the case. He is a big, broad-shouldered man, with a shock of white hair and a red face. He testified that he graduated from Baruch College, in 1978, with a degree in accounting, and that he joined the Trump Organization in 1987, where he worked until earlier this year, retiring with a severance package of five hundred thousand dollars. Andrew Amer, a lawyer at the A.G.’s office, asked him if he had already received this money. McConney said that he had received three hundred and seventy-five thousand dollars, with the remaining hundred and twenty-five thousand yet to be paid. Amer asked, not so innocently, whether the final payment was contingent on anything. “No, other than me being alive,” McConney replied.
Under further questioning, McConney said that the S.O.F.C.s were usually prepared for October, and that, under the covenants attached to the Trump Organization’s bank loans, it was legally required to present them to lenders on an annual basis. Amer also got McConney to agree that, under the terms of Mazars’ engagement letter with the Trump Organization, Trump had a responsibility to insure the accuracy and completeness of the financial information provided to the accounting firm. On a draft of the 2014 S.O.F.C., McConney had written “DJT TO GET FINAL REVIEW.”
Amer then questioned McConney at length about the basis of the valuations in the S.O.F.C.s of Trump’s triplex at Trump Tower, which went from eighty million dollars in 2011 to a hundred and eighty million in 2012, and then two hundred million in 2013. McConney said that, for the 2012 valuation, he used as “comp” the asking price of an apartment at another Trump building, 240 Riverside Boulevard, on the Upper West Side, which was on the market for seventy-five million dollars. (It later sold for thirty million.) Amer asked McConney if using selling prices rather than asking prices wasn’t the “right way” to value real estate. Kise, who reappeared after the lunch break sporting a bow tie, objected to the question, saying that it spoke to the whole crux of the defense’s case—that there was no one right way to do valuation. Judge Engoron overruled the objection, saying quietly, “I think a high-school student knows the right way.” When Amer asked McConney the question again, he replied, “No.”
Despite being rebuffed, Kise continued to object to the line of questioning. At one point, he prompted an angry counter-objection from Amer, who accused him of trying to school the witness with his lengthy objections. The Trump lawyer, who is a former solicitor general of Florida, and, intriguingly, a former transition adviser to Florida’s governor, Ron DeSantis, caused another kerfuffle by announcing that, on Friday morning, the defense would ask an appeals court to halt the trial and stay Engoron’s ruling that Trump and his fellow-defendants were liable for fraud. A furious Amer said that Kise hadn’t provided the court or the government with adequate notice about this move. Engoron agreed with him.
It seems highly unlikely that an appeals court will pause a trial overseen by a veteran judge in midstream, but Trump’s attorneys appear to be obliged to file long-shot motions. On Thursday, John Lauro and Todd Blanche, the attorneys who are representing the former President against federal charges that he conspired to prevent the lawful transfer of power after the 2020 election, asked the U.S. district judge Tanya Chutkan to dismiss that case on the grounds that Trump’s actions were within the scope of his Presidential responsibilities and couldn’t be used as the basis of a prosecution. If Chutkan’s ruling goes against Trump, he will inevitably present it as further evidence for his diehard supporters that he’s the innocent victim of a partisan witch hunt. This is the destructive game that Trump is playing, and his lawyers seem happy (or at least willing) to go along with it. On Friday morning, Kise and his colleagues went ahead and filed their motion to a New York appeals court. And in Judge Engoron’s courtroom McConney returned to the witness stand. ♦
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