Can Trump’s Antics In The E. Jean Carroll Trial Be A Good Idea?

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That humor contains a kernel of truth.

In a courtroom, the judge wears the robe. The judge is in charge. The jury knows it. If the judge criticizes a lawyer or a witness, that side is mortified: “The judge criticized us! How badly will the jury hold it against us?”

(Long ago, I tried a case involving the value of a piece of art. My expert witness was an art historian who appeared regularly on “Antiques Roadshow.” When the expert testified to this credential during direct examination, the judge immediately picked up his gavel and asked the witness, “How much is this worth?”

Eureka! In a case in which the jury would have to weigh the competing testimony of two expert witnesses — ours and theirs — the judge had implicitly suggested that our expert’s opinion should be trusted. How could we lose?

We didn’t.)

Lawyers know that judges matter, so lawyers handle judges with kid gloves. Lawyers laugh at judges’ jokes. Lawyers tell their witnesses to obey the judge’s instructions: “Don’t fight with the judge. Do whatever the judge says. If the judge asks you a question, don’t evade; answer it directly. The jury will be watching; you cannot win a fight with the judge.”

So what has Donald Trump chosen to do in the two civil cases — Letitia James’s fraud case and the E. Jean Carroll defamation case — that are ongoing in New York? He’s chosen to antagonize the judges.

In James’s fraud case, Judge Engoron has already ruled, on summary judgment, that Trump committed fraud. The judge has decided that Trump will lose; the only question is how much. But Trump got permission to make a speech during closing argument. During that speech, he announced that, “What’s happening here, sir, is a fraud on me,” and, later, “I know this is boring to you.” That, of course, was in addition to the insults he’d hurled at the judge on social media.

Not smart.

There’s no jury in the New York fraud case, and judges are generally pretty good at controlling their emotions. Maybe Trump won’t pay a price for having contradicted and insulted the judge. But maybe Trump will.

The Carroll defamation case is even worse. There is a jury in that case. Trump has nonetheless chosen to fight with the judge during trial. Press reports haven’t made clear whether the jury was present when Trump was arguing with Judge Kaplan, so it’s hard to assess the damage Trump may have caused. But, in an ordinary trial, there would be a terrible price to pay if the jury saw the client fighting with the judge.

In the ordinary case, of course, the client is a regular guy: Joe Bag o’ Donuts. Poor Joe has no chance in a spat with the judge. In Trump’s case, the situation is different: As always, the judge is an authority figure, wearing the robe and presiding over the proceedings. But in Trump’s case, the client, too, is an authority figure — the former president of the United States.

Is it possible that Trump can get away with his shenanigans?

I’m talking legally, of course. If Trump loses tens of millions of dollars at the defamation trial, but wins hundreds of millions of dollars in political contributions, or wins the 2024 presidential election, perhaps Trump lost the legal battle but won the political war.

Beyond fighting with the judge (and having his lawyers fight with the judge), Trump is making other choices that would be terrible miscalculations in typical litigation.

Any lawyer — any lawyer — would tell the defendant in a defamation trial not to repeat the defamation outside of court during the trial. The repetition will be introduced at trial as proof that the defendant cannot easily be deterred from defaming the plaintiff; counsel will argue that the jury must make an astronomical award of punitive damages to make sure the defendant gets the point.

So what did Trump do? He left court and promptly repeated his defamatory statements about Carroll.

Blech.

It doesn’t stop there. When a jury will be asked to award punitive damages, every lawyer tells the defendant to avoid ostentatious displays of wealth during trial:  “Don’t wear expensive jewelry. Don’t wear custom-tailored suits. Leave your Maserati at home. We’re going to try to minimize the punitive damage award by suggesting that you don’t have much money; the jury doesn’t have to award much to punish you. Don’t undercut our argument by flaunting your wealth.”

What did Trump do? He publicly insisted that he’s a multibillionaire and that the financial statements introduced in the James case actually understated his wealth.

Blech.

Lastly, what does any lawyer — any lawyer — tell a client to do when a fact is deemed to have been conclusively decided against the client for purposes of trial? “The jury will be instructed at the end of trial that the light was red. That’s already decided. So don’t insist that the light was green. At the end of trial, the judge will tell the jury that the light was red, no matter what you say, and the jury will think that you were lying. Be smart. Don’t deny the fact that has already been decided against you!”

What’s happening in the Trump situation? At the first Carroll trial, the jury found that Trump had sexually assaulted Carroll. The second Carroll case involves the same parties and some of the same facts, so the judge will instruct the jury that Trump met Carroll at Bergdorf Goodman and sexually assaulted her. Trump cannot deny these facts; they’re conclusively decided against him.

But Trump chose to deny these facts, giving speeches insisting that he never met Carroll and never assaulted her. If Trump takes the witness stand (I’m writing this over the weekend, and Trump won’t testify, if at all, until Monday), Trump may again insist that the established facts aren’t true.

I understand that Trump loyalists believe every word that Trump speaks, even when those words are self-evidently false. But can Trump really talk his way out of collateral estoppel?

The conventional wisdom says that Trump is about to get hammered for his multiple tactical mistakes.

Then again, the conventional wisdom has never before seen a case in which a former president was being tried. And the conventional wisdom said that a candidate who was caught on tape boasting about grabbing women by the genitals would never be elected to office.

Maybe the conventional wisdom is wrong.

But I wouldn’t bet on it. I’m betting that the last two weeks of January will be very bad ones for Trump: The D.C. Circuit will reject his claim of absolute immunity; Engoron will award nine figures of restitution to the State of New York; and the Carroll jury will put a multimillion-dollar dent in Trump’s wallet.

We’ll see.



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