Just a few days ago, when asked by Judge Juan Merchan if there was any indication his client intended to testify in his criminal trial, Todd Blanche responded that “a determination on that issue” had yet to be made. Perhaps it was because he didn’t want to show his hand. But as of right now, there is still no clarity on whether Donald Trump will take to the witness stand on Monday.
You’d think it’s a no-brainer that Trump would not testify. After all, the burden of proof is always on the prosecution: proving a criminal defendant’s guilt beyond and to the exclusion of every reasonable doubt. And that makes sense. An individual’s liberty is at stake and thus not only must the verdict be unanimous, the burden of proof must be met by the prosecution to secure a conviction.
Even if Trump’s team were to put on an expert witness, as we have heard might be the case, that decision does not obligate Trump to then take the stand.
Even if Trump’s team were to put on an expert witness, as we have heard might be the case, that decision does not obligate Trump to then take the stand. It bears repeating that there is no requirement that he testify in his own defense. Human nature militates toward the idea of hearing from “both sides,” especially in a case where the prosecution’s two star witnesses, Stormy Daniels and Michael Cohen, have provided quite damning testimony thus far against Trump. Jurors often want to hear from the defense to be able to weigh, in their own estimations, whether the two sides can be reconciled and if not, who has “won” that battle of stories.
Trump’s prior track record when providing sworn testimony has been poor, to say the least. Last year, during his civil fraud trial, he took the stand and ran his mouth with such abandon that Justice Arthur Engoron had to tell Trump lawyer Chris Kise to “control your client.” Engoron then threatened to remove Trump as a witness. Ultimately, Trump finished his rant and Engoron pretty much discounted his testimony. Then, during his sworn, videotaped deposition in one of E. Jean Carroll’s defamation cases, Trump famously mistook E. Jean for his ex-wife, Marla Maples, in a photograph. He then double-downed on his comments from the Access Hollywood tape, testifying that “if you look over the last million years I guess that’s been largely true. Not always, but largely true, unfortunately or fortunately” that stars can grab women “by the p*ssy.” Considering how badly things have turned out for him, Trump testifying is a failing proposition.
And there’s no doubt the cross-examination of Trump would be brutal. Not only would he be subject to questioning about the specific facts and issues in this case, but Merchan has ruled, pre-trial, that pursuant to New York’s People v. Sandoval case, Trump also can be cross-examined about the following additional matters: NY Attorney General Letitia James’ civil fraud case against him, E. Jean Carroll’s civil defamation cases against him, the dissolution of the Donald J. Trump Foundation, and his violations of Engoron’s gag order. That’s a lot of real estate that the prosecution could cover with Trump. And knowing his penchant for rambling and raving, there’s a reasonable likelihood he would admit to something incriminating during the course of his testimony.
In this instance, Trump should listen to his lawyers, who are undoubtedly telling him not to testify. I am confident that they are explaining to him the risks he faces having to take an oath to tell the truth and sitting down in front of a jury of his peers to answer questions about extramarital sexual encounters with a Playboy bunny and adult film star, hush money payoffs, and falsification of business records to hide one of those payments.
But, the intrigue still remains because there’s the possibility that Trump will testify. Trump is a loudmouth inside and outside of the courthouse. He never keeps his mouth shut, even with a gag order, as we’ve seen not only in this criminal case, but in his repeated violations of Engoron’s gag order in the New York Attorney General’s civil fraud case against him. He uses the hallway outside of this courtroom as a bully pulpit to air his grievances and to explain why this “witch hunt” of a trial is such an affront to the judicial system.
Trump has announced on multiple prior occasions that he intends to testify in his criminal trial. For example, as recently as April during a press conference at Mar-a-lago, he declared: “I’m testifying. I tell the truth. I mean, all I can do is tell the truth. And the truth is that there’s no case. They have no case.” Trump also previously said in March, “I would have no problem testifying. I didn’t do anything wrong.” Based on these prior declarations, therefore, you would think he will testify.
The gag order also doesn’t prevent Trump from testifying. Trump was caught complaining publicly and falsely that he wasn’t allowed to testify because : “I’m under a gag order — I guess, right? I can’t even testify…I’m not allowed to testify because this judge, who’s totally conflicted, has me under an unconstitutional gag order.” The next day, Merchan made sure that Trump understood, and that the whole world also knew, that the gag order isn’t an obstacle to his testimony: “The order restricting extrajudicial statements does not prevent you from testifying in any way,” Merchan clarified. “It does not prohibit you from taking the stand and it does not limit or minimize what you can say.” Problem solved. One thing is for sure: Trump is 100% in the driver’s seat on the decision whether or not to testify in his own defense. One thing is for sure: Trump is 100% in the driver’s seat on the decision whether or not to testify in his own defense. No one can force him to testify; the decision is not his lawyers’ to make. In a trial where he is required to attend each and every day the trial is in session, when a judge is telling him when he has to stand up, when he has to sit down, when he can leave, when he has to arrive, when even to go to the bathroom, Trump’s inner control freak must be relishing the fact that neither Blanche nor fellow lawyers Emil Bove nor Susan Necheles, and not even the Trump Campaign staff, can tell him whether he can testify or not. And it certainly seems like his lawyers take their direction from Trump. He notoriously appears to control his counsel. In this trial alone, we’ve seen them pursuing lines of questioning that don’t always make sense. We witnessed, even before the trial, Todd Blanche getting into it with Merchan over Trump’s violations of the gag order. We’ve seen two cross-examinations, of Daniels and Cohen, that seem to be meandering and at times, rudderless, from two lawyers who, by many in the profession, are estimated to be skilled trial attorneys. The good news is that we won’t have to wait long to find out if Trump will take the stand. On Monday morning, the defense will advise Merchan and the prosecution if he will testify, bringing what has surely been a rocky weekend in the Trump legal camp to an end.
Katie S. Phang
Katie S. Phang is the host of "The Katie Phang Show," which airs Saturdays at 12 p.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues. 
