By Kenneth Tiven
Behavioural latitude allowed in a state’s civil case for business fraud will not be available in any federal criminal cases likely to dominate Donald Trump’s campaigning in the next 12 months. There, a showboating defendant faces much tighter regulations, such as a demand for his presence in the courtroom every day. Rules limit media access within a Federal courthouse. Absent easy access to media will delay his direct appeal to voters, but, there is no doubt his response will be long and loud whenever delivered, and always with a “please help fund me” appeal attached.
The most serious issue for America and the world is whether his legal liabilities affect how America votes in 12 months. If the just concluded local and state elections are any indicator, Republicans did poorly in five key states—Pennsylvania, Ohio, Kentucky, Wisconsin and Virginia. A logical conclusion is that a Trump political comeback will be as remarkable—if it happens—as Kapil Dev scoring a mighty 175 to partner beating Zimbabwe in a 1983 World Cup Cricket match.
Like Dev, Trump dominated the “legal pitch” of this civil case, using his rambling verbal banter to tell his story regardless of the questions asked by the state’s lawyers. Whether scowling, whispering loudly to his lawyers, or throwing up his hands now and then, he made his disrespect for the Court evident throughout. He earned himself a gag order, then a fine for violating the gag order, and then a second fine for violating it again.
This magazine accurately predicted in 2016 that Trump would defy the behavioural and political boundaries associated with leadership in America. It will only get worse. Absolute truths about politicians are revealing. Lying would be an Achilles’ heel for most political aspirants, yet Donald is dangerously immune. He knowingly cheats on the golf course, refuses to admit losing a presidential election, and denies responsibility for promoting an insurrection against his government. He even claims the right to possess highly classified government documents secretly taken as he left office. For nearly everyone who finds this disturbing, there is a MAGA voter to applaud his belligerence.
Given his misogyny, it can hardly be ironic that his nemesis in this civil case is Letitia James, a black American woman who is the attorney general of New York State. Her team has outplayed Trump’s lawyers at every turn. She wisely asked for a bench trial where the judge makes the final decisions, an option in a civil suit in New York.
Where is the 12-person jury so often featured in Hollywood movies about truth, justice, and the American way of life? How did this happen? Why such incompetence by his out-of-state lawyers, who should have known to demand a jury? Outplayed. Civil cases in New York require the defendant to testify and further regard any refusal to answer a question as supportive of the negative implications of an answer. It is especially detrimental when a witness is shown prior depositions or media statements and asked if this is truthful.
Trump was a loser walking into a courtroom for the penalty phase of the case because the judge had already issued a finding of guilt based on pre-trial documents provided by lawyers. Trump did not play defense in the matter of penalties. Judge Arthur Engoron is considering a prosecution request to cancel Trump’s business licenses—effectively ending Trump’s company—and require paying a fine of $250 million. Trump famously hates being seen as a loser. Would Trump’s superpower of domination be useful in a courtroom? After a lifetime of ignoring rules, would Trump seek to win over the undecided voters he will need in a year?
Surly and volatile as a witness, Trump lashed out at the judge, and at perceived political enemies, generally making little effort to curb the type of meandering monologues he regularly offers on the campaign trail. Was he baiting the judge to make a judicial mistake that could enhance any appeal? Probably, but it suggests Trump has already emotionally written off his business empire and a potential $250 million penalty. The only acceptable redemption ahead for the 77-year-old Trump is some presidential immunity gained by winning back the White House in 2024. Such an enormous achievement will be a bigger surprise than his 2016 election. He has clarified that he will remake the federal government and the nation to his right-wing image if that happens.
New York state courtrooms or upcoming federal trials do not allow television cameras. Americans get their information from various online sources and media, which, in many cases, are politically and ideologically aligned. This entire month became a Trump rehearsal for a tactical approach to criminal indictments in three other cases and a still ongoing New York State case.
Courtrooms are where the witnesses have sworn to tell the truth. In Trump’s mind, perhaps he did. Deny and disclaim were his tactics against people working in his firm, as well as his outside lawyers and his accountants. He rambled and raged, meandering away from the yes and no answers that the court wanted to hear.
In earlier testimony, both his two sons, Don Jr and Eric, who had been running the family store while Dad was in Washington, did much the same with a better-contained sense of anger. The father—the Boss—made it evident that he’s a one-person demolition team if tearing down legal and political systems is necessary. “It is election interference because you want to keep me in this courthouse all day long,” Trump told lawyers for the state. He accused the attorney general of planning the case as a springboard for the governor’s job in New York. Turning facts upside down is a Trump speciality since he is politicizing the justice system for a return to power.
For Trump, it was another day on stage, as a wanna-be comedian reality star obstructing, exaggerating, insulting, and ignoring courtroom protocol to avoid yes or no answers. Trump’s outraged stream of consciousness and linguistic dexterity are a defense mechanism. His legal strategy mirrors his political belief: admit nothing while branding any criticism as proof of a vast, unfair plot against him. His martyr complex is transparent, but valuable in keeping his voters enthralled.
Pointing to the financial disclaimer on the valuation statements, Trump said. “We would call it a worthless statement clause. They were not really documents that the banks paid much attention to.”
Trump launched into a monologue: “As this crazy trial goes along the defense will call bankers and they were explain what the process is.” The judge interjects, notes that AG’s counsel has been “patient,” and instructs Trump to answer only the questions presented to him. Justice Engoron had rejected Trump’s “worthless clause” defense in his pre-trial ruling, noting, the “worthless clause does not say what defendants say it says, does not rise to the level of an enforceable disclaimer, and cannot be used to insulate fraud as to facts peculiarly within defendants’ knowledge, even vis-à-vis sophisticated recipients.”
Trump swipes at Judge Engoron from the witness stand, going off on a tangent about the statute of limitations: “I’m sure the judge will rule against me because he always rules against me.” Engoron asks Trump’s lawyer, Chris Kise, if that was necessary, before telling Trump: “You can attack me, do whatever you want, but answer the question.”
Trump insists that his marquee properties were “underestimated, like Mar-a-Lago, 40 Wall Street, Doral, and others,” falsely claiming that the judge estimated Mar-a-Lago was worth $18 million. Engoron had cited an appraisal of the property from 2011. Engoron doesn’t take the bait, reminding Trump what the question was. Then Engoron, interrupting another Trump rambling answer about his brand’s value, questions Wallace, the attorney general’s lawyer, “Did you ask for an essay on brand value?” Wallace: “No, your honor.” Trump then caricatures the AG’s case:
“Trump had no money. And he wrote up phony statements, and he defrauded banks,” even though they were represented by the best lawyers.
Wallace: “I move to strike that answer. Granted.”
Judge: “Mr. Kise, can you control your client? This is not a political rally.”
Kise eventually tells him: “You’re in control of the courtroom, not me.”
Kise doesn’t confer with his client, and Trump boasts about his financial statements.
Trump: “It’s a nice compilation of assets. It’s a great statement. […] It’s a lot of cash. […] The banks came to me. They wanted to make deals with me.”
Judge: “Stricken! Stricken!” Then asks, “If anything, you think the valuations that they used were too low, is that correct?”
At another point, Engoron asks Trump’s lawyer, “Mr. Kise, can you control your witness because I am considering drawing a negative inference on any question he might be asked? Kise urges the judge against that. Engoron: “I beseech you to control him, if you can.” The judge warns Kise that if he will control Trump if the lawyer doesn’t. Kise and Alina Habba defend Trump’s answers, calling it responsive to the questions. Habba says Engoron’s here to “hear what he has to say.”
Engoron snaps: “I’m not here to hear what he has to say. He’s here to answer questions. “He orders Kise and Habba to sit down. Trump says: “This is a very unfair trial. Very, very unfair, and I hope the public is watching it.” At one point, Trump was asked about a 2021 financial statement, and he responded that his focus was “China, Russia and keeping our country safe.” He had left the presidency on January 20, 2021, Inauguration Day.
Defense attorneys declined to offer any cross-examination. They present their defense in the coming weeks. Why did Trump take this approach in his appearance as a witness under oath? Most likely to raise campaign money from his MAGA base, which seems immunized against any reality that disagrees with their view of the world.
Trump has seemingly made the record of his culpability stronger. If Trump believes that an appellate judge will embrace his attacks on the judicial system and personnel, he misses a critical human behaviour: they take aggression personally. “You can’t con people—at least not for long,” Donald Trump observed in his 1987 bestseller The Art of the Deal. “You can create excitement, you can do wonderful promotion and get all kinds of press, and you can throw in a little hyperbole. But if you don’t deliver the goods, people will eventually catch on.”
Trump’s daughter Ivanka Trump Kushner avoided being a defendant because of a statute of limitations ruling. On Wednesday, she appeared answering questions in a precise and pleasant manner. Her answers mirror much of what her brothers testified to previously, that certain matters did not involve her.
The focus of questioning was on her role in obtaining a loan for the Doral Golf course in Miami. This included a requirement that Trump maintain a minimum net worth of $3 billion. A Trump organization lawyer had commented then via an email that this would be difficult to maintain. Ivanka Trump explained that issue this way: such a commitment was the only way to get a “great rate” on a loan. This underscores the attorney general’s claim that Trump’s treatment of financial matters was imprecise, and often included the falsification of records. She is on record telling the January 6 Congressional probe that she realized her father was lying when he claimed the election had been stolen. Family reunions and inheritances may never be the same when this lawsuit is finally finished.
—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels