We still don’t know if former President Donald Trump will tell the jury his side of the sordid hush-money scheme still unfolding in his New York criminal court case.
But now we know the odds.
The oddsmakers at BetOnline, who have been setting lines on who will or won’t show up to support Trump in court, took a look for me and decided there is a 96.2% chance that he’ll pass on testifying.
That’s probably for the best for Trump. He has been stewing for weeks now in court, listening to the humiliating tale of his alleged desperate push to silence an adult film actress in the weeks before the 2016 election. He’s accused of illegally influencing that election to keep her quiet about a brief affair a decade earlier.
From Trump’s long and tangled legal history, we know he’s his own worst enemy when questioned under oath in depositions and trials.
Lawyers know it’s best that Trump does not testify
Trump lacks self-control in the best of circumstances. There’s no chance he could help himself by testifying now while he toggles in court between snoozing and seething.
I spoke to two Philadelphia-area attorneys who have represented Trump in the past. Both thought Trump should stay off the stand.
William J. Brennan, who represented Trump during his second impeachment and later during a civil fraud business case in New York, predicts the former president will not testify.
“You always hope your client doesn’t have to testify,” said Brennan, who has an excellent last name but is unrelated to me. “You have to weigh the benefit of whatever you’re trying to elicit to the harm of whatever comes in cross-examination.”
Brennan said he considers Michael Cohen, Trump’s former attorney and fixer and now the prosecution’s star witness since he handled the negotiations and payments for the hush money, a “tremendously polluted source.” He sees that as a good thing for Trump. Cohen was back on the stand Thursday and could be the trial’s last witness.
The case against Trump so far means he doesn’t have to testify
Brennan and Bruce Castor, who also represented Trump in the second impeachment, expressed concerns to me about a jury drawn only from Manhattan. Brennan wished the pool included cops from Long Island and firefighters from the Bronx.
Castor said the evidence against Trump so far “is a disaster and does not contain sufficient evidence to convict.” From a legal standpoint, Trump should not testify, Castor told me.
But Castor also makes a case for letting Trump be Trump.
“From a political perspective? Absolutely he should testify, because the local bias is so pervasive he is likely to lose despite that legally no way is a conviction justified,” Castor said. “He might as well tell the world what is happening because the voters deserve to know the ridiculous nature of the prosecution.”
Trump keeps changing his mind
Trump has vacillated on whether he will testify since the trial started April 15. He said last month that he intended to take the stand and repeated that outside of the courtroom after the trial was underway.
But Trump, who is under a gag order thanks to his pernicious attacks on witnesses in the trial, has also falsely claimed that the order meant he was “not allowed to testify.”
That’s nonsense. And Judge Juan Merchan let him know it, quickly clarifying in court that the gag order does not prevent Trump from testifying.
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This is classic Trump. He presents himself as the strongest man in America who just happens to be the tragic victim of every repercussion for his behavior. I think he’s setting up an excuse for not testifying after talking tough about how eager he was to take the stand.
Trump must know the political and legal disaster that waits for him if he testifies and prosecutors get to cross-examine him.
Trump doesn’t have the best record on the witness stand
Trump railed from the witness stand in November during his civil fraud trial, attacking the judge and the case, treating it all like some sort of confined political rally. Did that help? The resulting $454 million verdict suggests it did not.
Trump, who was found liable last year for the sexual assault of the writer E. Jeanne Carroll, tried to run roughshod over her lawyers during a deposition for her defamation claim against him. Trump dismissively disregarded Carroll as “not my type” but then mistook her for his second wife, Marla Maples, when shown a picture of Carroll.
How did that go for him? The resulting two verdicts of a combined $88.3 million tells you what you need to know.
Trump sued writer Tim O’Brien in 2006 for daring to suggest that the former president made a habit of exaggerating his wealth. That led to a deposition where Trump had to repeatedly backtrack on claims he had made about his wealth. He also admitted that his claims of net worth relied as much on “my own feelings” as it did on any financial records at the time.
That case against O’Brien was dismissed. Trump appealed and lost again.
It would be remarkable if Trump stuck to his promise to testify. But it’s a risk he can’t afford to take. That’s why he’ll stay quiet in the courtroom and then try to claim that he was somehow silenced everywhere else. Trump sees little risk in lying about this sort of stuff, as long as he’s not under oath.
