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Letitia James is not done with Donald Trump. Now she wants to know if he withheld evidence in her fraud case.

New York Attorney General Letitia James is not content to rest on her $454 million victory in Donald Trump’s civil fraud trial, even as Trump’s legal debt keeps snowballing.

No, James still has some unfinished Trump business on her calendar.

She is asking hard questions about the $175 million bond that would safeguard at least some of what Trump owes New York while he appeals the case. A hearing on the bond’s financial soundness is set for April 22.

James is also intent on holding Trump’s feet to the fire over something her office has complained about for four years: the withholding of evidence.

In a letter from Tuesday night, she argued that the integrity of the fraud trial may be at stake.

James is looking at three internal Trump Organization email chains from 2016 that she says were never turned over to her office during the five years she investigated whether Trump inflated his net worth.

James is sure the emails exist.

Manhattan prosecutors used them as evidence in arguing that Allen Weisselberg, the Trump Organization’s chief financial officer, committed perjury. He was sentenced to five years in jail this week.

But the emails — in which Weisselberg and his Trump Organization underlings responded to questions from Forbes about the value of Trump’s Manhattan triplex penthouse — were not among the 900,000 documents the organization turned over to James’ fraud probe.

“The Court is well within its authority to determine if Defendants and their counsel facilitated that perjury by withholding of incriminating documents,” James argued in Tuesday night’s letter.

Solving that mystery is “certainly within the power of this Court to safeguard the integrity of its own proceedings,” she added.

A forensic review

In a letter from October, after James first found out about the missing triplex emails, she immediately asked the trial judge,  Justice Arthur Engoron, to order a forensic review of “electronic data held by the Trump Organization for the very brief period [of] August to September of 2016.”

“The failure to produce these later emails indicates a breakdown somewhere in the process of preserving, collecting, reviewing, and producing documents,” the letter said.

James proposed the forensic review be conducted by the court-imposed monitor, Barbara Jones, a former federal judge whose staff at Bracewell has been examining Trump’s finances since November 2022.

Six months later, Engoron hasn’t yet approved the review.

Instead, it’s the subject of a heated battle between Trump’s lawyers, who oppose a review, and an attorney for James who has championed the withheld-documents cause since 2020.

“We have already raised multiple times the prospect that Defendants have withheld relevant and responsive information,” Kevin Wallace, James’ senior enforcement counsel, wrote to Engoron on April 4.

He asked “that the Monitor be tasked with reviewing electronic files collected by Defendants,” including those collected for production to Manhattan prosecutors.

The monitor’s review would determine whether the emails “were in the possession of the Trump Organization,” and, if so, why they were never turned over, Wallace said.

Clifford Robert, one of Trump’s lawyers, argued this week against further expanding the monitor’s role.

“The NYAG’s astonishing request is an evident play to transform the Monitor into her own special counsel,” he wrote.

Robert did not immediately respond to a request for comment from Business Insider.

An already powerful monitor

Under Engoron’s most recent expansion of the monitor’s role, Jones has expansive powers.

Trump must give the retired judge and her staff five days’ notice of any cash or asset transfers totaling $5 million or more and 30 days’ notice of the creation or dissolution of any of the 400-plus entities under the Trump Organization umbrella.

She must also review all Trump Organization financial filings, including tax returns, before they’re sent to third parties.

A history of missing documents

Allegations that Trump withheld evidence have been an issue since at least 2020, when James first complained publicly that the Trump Organization was defying her subpoenas.

The first time New York officials publicaly complained that Trump was withholding evidence.
This 2020 filing was the first time New York officials publicly complained about the Trump Organization withholding evidence. NY Attorney General’s Office/Business Insider

For at least two years, James has appeared to be steadily building a “spoliation” case — the legal term for the loss or destruction of evidence that should have been preserved for a lawsuit — against Trump and his company.

As a senior lawyer for James, Wallace has repeatedly complained about missing evidence and signaled that his office may seek sanctions.

At a hearing in April 2022, he compared getting Trump’s documents to “pulling teeth.” He also took issue with one of Trump’s attorneys’ suggestions that Trump had only 10 custodial documents, meaning business files directly in his custody, out of the 900,000 total documents turned over.

“I’ll be frank,” Wallace told the judge, “if that’s all there is, it raises a bunch of other issues.”

Sixteen months later, when Wallace wrote Engoron to say the attorney general was ready for trial, he made sure to add that James’ office “reserves its right to seek relief after trial relating to the Defendant’s spoliation of evidence.”

Possible sanctions include more fines

Civil case law from New York allows a judge to set sanctions for spoliation that include a finding of contempt of court and any fines they see fit.

But there’s a high burden of proof, said Marc Frazier Scholl, a former financial-crimes prosecutor for the Manhattan district attorney’s office.

The AG’s office would have to prove that Trump, Trump Organization executives, or their defense attorneys had control over the documents being subpoenaed and that they destroyed or withheld them instead of turning them over.

“The first thing, if you’re seeking spoliation sanctions, is to prove there was a known obligation to keep the evidence when it was lost or destroyed,” Scholl, now a counsel at Lewis Baach Kaufmann Middlemiss, said

He predicted that if James did end up seeking fines, they would likely be minimal and symbolic.

James’ lawyers have said that many of Trump’s missing documents were ultimately subpoenaed from outside witnesses who also had copies.

“They got the documents in other ways, which is why they know to ask for them specifically,” he said, referring to the case of Weisselberg’s emails.

Ultimately, the attorney general’s office won the case, getting essentially everything it sued for, including the massive financial judgment.

“Would they really have gotten a larger judgment if they got more documents? I don’t think so,” Scholl said. “I think this is a shot across the bow, potentially against the Trump counsel.”

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