New York Attorney General Letitia James. (Photo: David Handschuh/NYLJ)

New York Attorney General Letitia James rebuffed claims this week from attorneys for President Donald Trump that her office’s lawsuit against the Trump Foundation is politically motivated and shouldn’t be allowed to stand in state court during his presidency.

The argument over political motive, included in a filing last month from attorneys for the Trump Foundation, was made after James previously said she would use the Attorney General’s Office “to investigate President Trump and his business transactions and that of his family as well.”

The state’s response, this week, was part of a filing in New York’s lawsuit against the Trump Foundation that essentially laid out the state’s case to seek restitution from the organization and block Trump and his children from managing a nonprofit in New York.

The litigation alleges that Trump used funds from his charitable organization to advance his political interests during the 2016 presidential election and to pay for a series of other transactions unrelated to the foundation’s activities.

Alan Futerfas, an attorney from Manhattan representing the Trump Foundation in the suit, declined to comment on the filing, which was largely just a rehashing of the state’s case.

The document said that Futerfas, who denied the state’s allegations in his own filing last month, had provided no evidence to the court that would refute New York’s claims against the Trump Foundation.

“This evidence is unchallenged and unrebutted; respondents have not submitted any admissible evidence to counter the substantial evidentiary record submitted by the attorney general,” the state’s filing said.

The lawsuit is seeking $2.8 million in restitution from the Trump Foundation and a temporary ban on Trump and his children from serving on the board of a nonprofit organization in New York. The litigation stems from a fundraiser for veterans groups held by the Trump Foundation in 2016 and a series of transactions by the organization that James’ office has labeled as “self-dealing.”

A central part of the lawsuit alleges that the Trump Foundation, and Trump by extension, engaged in a related party transaction when officials from his campaign allegedly worked with staff from the Trump Foundation to arrange the veterans fundraiser. Such a transaction occurs when it results in a tangible benefit for an individual.

The fundraiser generated $5.6 million in donations, half of which was distributed through a website apart from the foundation. The remaining $2.8 million was disbursed by the foundation over time, including at a handful of Trump’s campaign events.

Futerfas has claimed that, since all the money generated by the fundraiser was donated, Trump did not financially benefit from the event, and therefore can’t be accused of engaging in a related party transaction.

James’ office argued in the filing this week that the political benefit Trump gained from the fundraiser and resulting disbursements is enough to require penalties.

“Here, Mr. Trump, the candidate, exhorted the public to donate to his foundation and then gave his campaign full control over the disbursement of the donations, from choosing the identity of the recipients to the amounts and timing of the grants,” the state’s filing said. “This arrangement not only violated New York law, but also ran afoul of federal campaign finance law, turning a charity fundraiser into a campaign fundraiser and campaign rallies into opportunities for the candidate to dole out money the public had donated to a charity.”

Futerfas, in past filings, has called the lawsuit politically motivated, pointing to former Attorney General Eric Schneiderman’s public statements opposing Trump’s campaign for president in 2016. Schneiderman launched the investigation into the Trump Foundation that year.

That argument was rejected by Manhattan Supreme Court Justice Saliann Scarpulla in a previous decision, but Futerfas rehashed it in his filing last month. He said that since James, who took office in January, ran her campaign last year largely on a promise to bring litigation against Trump and his family, the lawsuit should be thrown out on grounds of political bias.

“Respondents aver the following additional facts arising subsequent to the facts previously alleged: Newly elected New York Attorney General Letitia James ran on an anti-Trump campaign where she expressed grave antipathy and animus toward Mr. Trump,” Futerfas wrote. “Statements by the former two, and the current, New York attorney general, express clear bias and animus and constitute an unlawful appearance of impropriety.”

James’ office, in this week’s filing, responded by saying that argument had already been settled by Scarpulla, and that it shouldn’t apply to James since she took office months after former Attorney General Barbara Underwood brought the lawsuit in June.

“Respondents’ additional allegations of bias against Attorney General James are not only meritless, they cannot logically support respondents’ claim that the petition was ‘filed for improper, biased and political reasons’ because the petition was filed many months before she was elected or took office,” the state’s filing said.

The filing also responded to claims from the Trump Foundation that federal law prevents Trump from being subject to litigation in state court while serving as president. Attorneys for Trump in a different lawsuit, brought by former Apprentice contestant Summer Zervos, had made the same argument in an attempt to dismiss that litigation.

But earlier this week, a panel of judges from the Appellate Division, First Department rejected the argument in the Zervos case, writing that the supremacy clause of the U.S. Constitution doesn’t exempt a sitting president from litigation in state court, as Trump’s attorneys had argued.

Scarpulla had, also, previously come to the same conclusion, but the First Department’s decision holds more weight as one of the state’s appellate courts. James’ office referenced both decisions in their filing this week.

“The tenth affirmative defense, that the court lacks jurisdiction over Mr. Trump, has already been rejected by this court in its decision on the motion to dismiss based on reasoning that was recently upheld by the Appellate Division,” the filing said.

Futerfas has appealed Scarpulla’s decision rejecting that motion to dismiss to the Appellate Division, First Department. The rest of the lawsuit, meanwhile, is ongoing.


Trump Can Face Litigation in State Courts as President, Appellate Panel Majority Rules

NY AG James Rejects View That Trump Foundation Suit Is Politically Motivated

Trump Foundation Agrees to Dissolve Under Stipulation With NY AG