0630 GMT October 18, 2019
Alexandria Ocasio-Cortez was on to something. In her questioning of Michael Cohen, she asked if Donald Trump had ever provided “inflated assets to an insurance company.” He answered in the affirmative — and also testified to rampant tax fraud by Mr. Trump and allegedly by the Trump Organization officials Allen Weisselberg, Ron Lieberman and Matthew Calamari.
The questioning apparently caught the attention of New York State regulators, who issued a subpoena for the Trump Organization’s insurance policies.
State officials should not stop there. The allegations of criminal conduct by Donald Trump and Trump Organization officials are no longer mere speculation or reporting. The public record establishes probable cause for campaign finance felonies, and a potential case for criminal tax fraud, bank fraud, insurance fraud and suborning perjury to hide shady business dealings — a staggering mix of state and federal crimes implicating a range of Trump Organization officials.
State attorneys general — especially New York Attorney General Letitia James — should not wait for any Justice Department official to hold Trump accountable for potential crimes. They also do not need to wait to build a case for criminal indictments. The appropriate immediate path is a special state civil proceeding against the Trump Organization and its officials.
Legal status as a corporation endows businesses like the Trump Organization with great powers, and with those powers come specific responsibilities. To police these privileges, almost every state in the country has a statute that gives its attorney general the power to bring civil actions to investigate corporations for fraud and to go to court to dissolve the ones that persistently break the law. This statutory power descended from an old English proceeding called “quo warranto,” meaning “by what authority do you exercise legal power?” The question in this case is whether the Trump Organization has so abused its privileges that it has lost this legal authority.
The Trump Organization is incorporated only in New York and Delaware, so New York officials have a unique role and responsibility. New York attorneys general have not used their power to dissolve corporations often, but as recently as 1994, they brought a civil action leading to the dissolution of a fraudulent entity. New York’s highest court has described this remedy of civil dissolution as a “judgment of corporate death,” and for the state to invoke such a corporate death penalty, the corporation’s “transgressions” must not be merely incidental, but “material and serious; and such as to harm or menace the public welfare.”
In fact, the previous attorney general, Barbara Underwood, brought a similar action — to potentially dissolve fraudulent nonprofits — against the Trump Foundation. In June, Ms. Underwood filed a civil petition citing a long list of the Trump Foundation’s abuses of nonprofit privileges, including frauds to promote the Trump Organization and the Trump campaign. President Trump, his family members and Trump Organization officials like Mr. Weisselberg were frequently named in this petition — along with allegations of civil and potentially criminal wrongdoing. Six months later, the Trump Foundation announced that it would dissolve on its own (but the attorney general’s petition still seeks restitution and further judicial remedies).
The allegations against the Trump Organization in the petition against the Trump Foundation, in combination with flagrant and systematic Emoluments Clauses violations, Mr. Cohen’s allegations and other public allegations about persistent tax schemes establish enough of a basis for Attorney General James to file a similar civil petition against the Trump Organization. A petition would then open a civil investigation into these allegations with the state using discovery to access documents and depositions to interview witnesses under oath.
If the New York attorney general finds evidence of persistent fraud or abuse in the investigation, she can seek a court’s order to dissolve the organization. Like the petition in the Trump Foundation case, this petition could also ask the court to order the Trumps to “make restitution and pay all penalties” for their corporate fraud and abuse.
* Jed Handelsman Shugerman is a professor at Fordham Law School.
The opinion was first published in The New York Times.