Democrat political activist Letitia James, elected to be New York’s next Attorney General, is out to destroy Donald Trump and anyone around him. She recently told NBC News, “We will use every area of the law to investigate President Trump and his business transactions and that of his family as well,” and that, “[w]e want to investigate anyone in his orbit who has, in fact, violated the law.”
These Lavrentiy Beria-like plans announced by James – first identifying the person and only then trying to find a crime – will focus on President Trump’s real estate holdings, his charitable foundation, and government subsidies that Trump may have received, which by some people’s definition includes tax deductions. James told NBC News her investigation will also include looking into whether President Trump has violated the emoluments clause of the Constitution, an issue about which the left has shown a preschool understanding in its desire to overturn the 2016 election.
NBC News further reports, “[James is] also enlisting help from some prosecutorial heavy hitters, like former U.S. Attorney General Loretta Lynch, as a part of her transition to help her identify important hires for her office with an eye on bringing in experts for its Trump-related investigations.” Lynch, of course, headed the Obama Justice Department during the Trump transition entrapment fiascos, and had the infamous tarmac meeting with Bill Clinton during the Hillary missing email saga.
New York law gives its Attorney General broad powers to conduct arbitrary investigations, broader even than those of the federal government. These powers are open to abuse by politically driven zealots, and are dangerous. The good news is that they are also ripe for constitutional challenges.
For example, James will have authority to conduct “constructive searches” of papers and effects (which include emails and digital data) using what are called “civil investigative demands.” These constructive searches rely on compulsion under threat of penalty rather than physical entry to remove the same papers and effects. Under laws that badly need to be reformed, James need not have probable cause to initiate these searches, and can unilaterally issue civil investigative demands, meaning she need not obtain them from a neutral judge who could check her abuses of power.
Unlike most federal civil investigative demands, New York’s may be issued under nearly no guidelines designed to restrict abuses. New York law authorizing these searches provide few objective standards that a court in an enforcement hearing could use to determine whether the demands exceed authority of a legitimate purpose, or whether the search demands are unreasonably burdensome.
Targets of such searches also have extremely limited rights to discovery in enforcement proceedings. These unilateral search writs therefore are almost impossible to stop even when they are issued to abuse power.
Undoubtedly, Ms. James understands the harm and chaos she can cause just through investigation. As one U.S. Supreme Court justice wrote about these types of searches, “[o]fficious examination can be expensive, so much so that it eats up men's substance. It can be time-consuming, clogging the processes of business. It can become persecution when carried beyond reason.”
There nevertheless is leverage Trump can bring against James, and expose the lawlessness and unconstitutionality about what she has threatened. The following include observations from my recent continuing legal education paper and presentation, “Civil Investigative Demands: Fourth Amendment Enigmas and Strategies to Respond,” and are not to be construed as legal advice.
First, Mr. Trump needs to treat Ms. James as a legal existential threat. He should assemble a “dream team” of lawyers, ones who do not have regular business before the New York Attorney General so they are not tempted to compromise Trump’s interests. Trump should put on this team what I call warrior lawyers. Warriors have the mentality that he or she might get hurt, but assuredly their opponent will get hurt. Trump’s legal team needs to send a strong signal that there will be a tremendous downside for Ms. James.
Trump’s team should make a constitutional challenge against the Attorney General’s arbitrary power to search. For this Trump should hire Professor Philip Hamburger, whose scholarship on the constitutional problems with the administrative state is not only unmatched, but positions him as among the best lawyers who grasp the true danger of the judgeless searches James will employ.
That constitutional challenge could be aided by the 2018 Supreme Court opinion in Carpenter v. U.S., which declared the constructive search at issue was unconstitutional, and acknowledged that the Fourth Amendment applies where there is a legitimate expectation of privacy in the data sought. While some people in New York State have adopted the Marxist view that business papers and property are not legitimately private, that is not the prevailing view in America. Many businesses go to great lengths and costs to protect the privacy, confidentiality, and security of documents and data – their private property – used internally or even which they share confidentially with key business partners, vendors, and business clients.
There are other legal tactics Trump may use. One is that his legal team and all the lawyers for his business empire, family, and associates enter into what are called “common interest agreements.” These agreements allow the lawyers to share information while being protected by the legal privilege of confidentiality.
When responding to James’ judgeless, arbitrary search writs, Trump’s team should smother James with objections. And even when complying with the civil investigative demands, Trump’s team should preserve trade secret and constitutional objections.
Since civil investigative demand enforcement proceedings almost always preclude discovery, Trump should use Freedom of Information Act requests to expose patterns of lawbreaking within James’ office. State attorneys general have a history of failing to respect FOIA laws. Acting lawlessly like that plays to one of Trump’s strengths, which is to name names and humiliate government lawbreakers. Especially with elected state attorneys general, showing they have exposure of a pattern of violating the law can be a hot potato.
Trump is a smart businessman from the rough-and-tumble world of New York City, and probably already has tight controls on his internal documents. But in light of the Carpenter majority opinion, his team should take affirmative steps to identify and memorialize a legitimate expectation of privacy in data and papers. Especially because of Justice Gorsuch’s admonishing dissent in Carpenter, Trump’s lawyers should take affirmative steps to identify the private property and bailment nature of data shared with third parties.
State attorneys general are infrequently challenged aggressively or seriously audited, so they tend to be sloppy about their internal affairs, and their offices violate many laws. Ms. James may not think this yet, but she and her office would have “skin in the game” if they take on Trump.
Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of "The Law That Governs Government."