This week, New York Attorney General Letitia James revealed that her civil law inquiry into the corporate entity known as the Trump Organization has become a criminal investigation. In that same brief statement, New York state's top law enforcement official also explained that James' office has partnered with the Manhattan district attorney, who is already investigating potential criminal tax fraud violations committed personally by former President Donald Trump.
For the Trump family, it may already be too late to get their stories straight.
This week also brought news that the Trump Organization's CFO, Allen Weisselberg, is the subject of a New York state criminal investigation into his personal taxes — which appears to be an attempt to leverage his cooperation in the Trump Organization case.
Former Trump Organization Vice President Michael Cohen, upon learning of the now-criminal probe, said of the Trump children, "I think Trump is going to flip on them." While we have no idea what the future will hold, we do know that what this all means is that — if they haven't already — it's time for members of the Trump family who served as organization employees to each retain experienced criminal defense lawyers.
In fact, depending on what those Trump Organization family members have already said — and to whom — it may already be too late. Importantly, because the Trump Organization case is now criminal, individual employees and officers of that organization can face criminal charges for their specific roles in any corporate wrongdoing. Donald Jr. and Eric still serve as executive vice presidents of the organization, a title that Ivanka Trump previously also held. And, of course, before his presidency, their infamous father was at the helm of the organization.
During my FBI career, including my time leading one of the largest white-collar crime branches in the field, and later, as a corporate security executive, I saw corporate employees mistakenly think that their companies' attorneys represented them, too, in cases of corporate malfeasance. Big mistake. A company attorney represents the company, not the individual employees or executives. It's quite likely that Trump Organization attorneys have already asked — and Trump family members have already answered — questions about what each of them did or did not do that might be the focus of New York's investigation.
Depending on what those Trump Organization family members have already said — and to whom — it may already be too late.
In fact, there's a whole body of case law on what it means when an employee answers questions posed by a company's attorneys or investigators to try to get to the bottom of who did what. There's even a kind of "corporate Miranda warning" that ethical companies give their employees who are asked to provide statements when a company is trying to determine whether it's in trouble.
These advisements — called "Upjohn warnings" — developed out of a Supreme Court case involving a pharmaceutical company accused of paying bribes overseas. The Upjohn case resulted in a kind of good news/bad news conclusion. The good news for corporations was that the court found that attorney-client privilege applied to communications between company attorneys and employees.
That meant companies could confidentially rely on, and preserve under privilege, what their employees told them about what went wrong. The bad news for employees was that the attorney-client privilege had nothing to do with them. The privilege belonged to the company, and the company could waive that privilege in a heartbeat if it wanted to expose employees' statements and pin the blame on them.
If any of the Trump family members have already even casually answered questions posed by their organization's counsel or hired investigators, they may have mistakenly thought that what they were providing was privileged. And those statements would be privileged — but not if the organization decided, in its own interest or at the direction of the former president, that maybe Eric or Don Jr. or Ivanka needed to take the fall to save the organization or keep its notorious CEO out of prison.
The good news for corporations was that the court found that attorney-client privilege applied to communications between company attorneys and employees.
Each of the organization's employees and officers will have their own stories to tell law enforcement agents and prosecutors about their own roles at the company and their own knowledge and intent when it came to possible criminal wrongdoing.
Often, those stories of corporate employees vary widely as to what they believe their colleagues did or didn't do — even when those colleagues are your children, your brothers, your sister or your father. For the Trump family, it may already be too late to get their stories straight. And doing so may not even be in their individual best interests. That's why it's time for each of them to separately lawyer up, avoid public statements — and be really nice to one another.