Donald Trump, left, stages a check presentation with an enlarged copy of a $100,000 contribution from the Donald J. Trump Foundation to Support Siouxland Soldiers during a campaign event at the Orpheum Theater in Sioux City, Iowa in January 2016, during Trump’s run for president. New York Attorney General Barbara Underwood filed a lawsuit accusing Trump of illegally using his charitable foundation to pay legal settlements related to his golf clubs and to bolster his presidential campaign with foundation disbursements such as this one in Iowa. Photo: Luke Sharrett/Bloomberg

Attorneys for New York Attorney General Barbara Underwood’s office hit back on Thursday against claims that their lawsuit against President Donald Trump and his charitable foundation was politically motivated by former Attorney General Eric Schneiderman’s ill will toward the president.

Underwood’s office called claims from Trump’s attorneys in August that the lawsuit was driven by political bias a “distraction,” and said the lawsuit should continue based on the office’s monthslong investigation into the Trump Foundation.

“Contrary to respondents’ attempt at distraction, the attorney general’s petition was brought exclusively because an investigation by the office’s charities bureau revealed persistent illegality by the foundation and its directors,” wrote charities bureau chief James Sheehan. “The attorney general is charged with bringing action to preserve the public interest in charitable assets and the property management of charities in just such cases.”

The office also revealed in its filing that a mid-August phone call in the case did not go as planned. Attorneys for both parties were supposed to discuss Underwood’s demand to bar three of Trump’s children, who served on the foundation’s board, from serving at another nonprofit or charitable organization in New York State for one year. They did not come to an agreement, according to a footnote in the filing.

“Despite the court’s urging at the June 26, 2018 conference, Mr. Trump’s children have refused to agree to a bar of any length, nor have they made any reasonable proposal with respect to completing board service training,” the filing said.

Trump and the foundation are represented in the lawsuit by Alan Futerfas, a Manhattan attorney with his own practice. He has until Oct. 16 to file reply papers on the motion.

“We are confident in our position and we look forward to replying to their papers,” Futerfas said on Thursday.

The parties are scheduled to argue later this month before Manhattan Supreme Court Justice Saliann Scarpulla on Underwood’s petition, which seeks restitution from the foundation of $2.8 million and to bar Trump from serving as the director of a nonprofit in New York for a decade.

Underwood’s office has accused the foundation of improperly colluding with the Trump campaign on a political event a few days before the Iowa caucuses in 2016. Trump opted to hold a televised fundraiser for veterans groups rather than participate in a debate between the other Republican candidates for president.

The complaint alleged that officials at the Trump Organization worked with campaign officials to organize the fundraiser and distribute funds to specific veterans groups. The fundraiser, Underwood’s office said, used specific marketing similar to what Trump used for his campaign materials and events.

Futerfas said in August that the Trump Foundation was used for the fundraiser because it was able to both collect and distribute the money to the designated charities. He also said the foundation did not spend any money on the fundraiser and that all of the money collected through the event was given to charity.

The complaint also alleged that Trump used the foundation to settle a series of personal financial obligations, which Futerfas tried to explain in his motion to dismiss the lawsuit in August. He said in the filing that, in each situation, the money was reimbursed to the foundation.

One of those situations was just a mix-up, Futerfas had argued. A check from the Trump Foundation found its way to the re-election campaign of Florida Attorney General Pam Bondi because a clerk at the Trump Organization thought her campaign account was a charity, he claimed. Trump reimbursed the foundation for the alleged mistake.

Futerfas had accused Underwood’s office of political bias in pursuing the claims against Trump and his foundation. Aside from calling that claim a distraction, her office also gave a series of examples of similar disputes settled with charities over similar claims.

The charities bureau settled with the Richenthal Foundation recently, for example. The foundation’s executive director had been accused of using money from the foundation to settle litigation that had nothing to do with the charity. That was made easier for the officer because the foundation had little oversight from its board, according to the filing.

A similar claim was made against the Trump Foundation in Underwood’s lawsuit. The office alleged that the foundation’s board had not met for nearly two decades when they filed the suit in June.

Trump’s attorneys are hoping in this case and others brought in the state’s courts that the supremacy clause of the U.S. Constitution will prevent the litigation from reaching fruition. Futerfas wrote in his motion to dismiss that the clause forbids a sitting president from facing litigation in state courts.

Underwood’s office wrote that there was no legal precedent to suggest that would be the case.

“Respondents are unable to cite a single case in which a court has dismissed a civil suit against a sitting U.S. president for unofficial acts on the ground that the court’s jurisdiction would be unconstitutional,” they wrote in the filing.

Trump’s attorney argued in a different lawsuit against the president that the 1997 decision in Clinton v. Jones exempts Trump from state action. Some legal experts have been skeptical of that argument.

The next appearance in the case is scheduled for Oct. 25.


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