It was late Sunday afternoon when the news broke: Donald Trump confirmed — at the tail end of an all-caps, two-post rant on Truth Social — that he would not be testifying for a second time in the New York attorney general’s civil fraud trial against him, his adult sons and others.
I have long predicted this was how the defense case would end, not with a bang, but an expert. (Trump’s purported silver bullet of an expert witness, New York University accounting professor Eli Bartov, has already testified over two trial days, and Tuesday, as he concludes his testimony, he will be the defense’s ultimate witness.) But others, from savvy lawyers to longtime Trump chroniclers, were surprised.
Respectfully, they shouldn’t have been — and for at least three reasons:
Trump has never been a reliable or helpful witness in his own defense
As my colleague Steve Benen wrote the morning after Trump’s Nov. 6 trial testimony, Trump claimed well before the first of E. Jean Carroll’s defamation and sexual assault cases was tried last May that his infamous “Access Hollywood” hot mic moment was a historical truth — and even worse, mistook an old picture of Carroll for his ex-wife, Marla Maples. His latter action all but conceded that Carroll was, in fact, exactly his type.
One year prior, in his testimony in a personal injury lawsuit brought by protestors injured at Trump Tower in 2015, he attempted to justify a prior, public instruction to security at a political rally to “knock the crap” out of protestors on grounds that those throwing tomatoes were wielding dangerous, even killer, fruit.
Trump’s gag order likely played a role
As I explained on “Morning Joe“ last week, Trump’s failure to resolve, much less, escalate his further appeal of the New York gag order before his scheduled testimony was the first sign he could not testify. After all, during his Nov. 6 testimony, Trump succeeded in not attacking Judge Arthur Engoron’s law clerk, but he was otherwise digressive, so much so that at one point Engoron asked Trump lawyer Chris Kise to instruct his client that the trial was “not a political rally,” but “a courtroom with a case about Executive Law 63(12).”
And not only was Trump digressive; he was downright vengeful. Take just one example from Nov. 6, when Kevin Wallace, the lead lawyer for the New York attorney general, asked, “You do not agree with the position of the Office of the Attorney General that the values in the Statement of Financial Condition are overstated, is that correct?”
Trump’s initial, non-responsive response was, “I think she’s a political hack.”
Wallace, according to a court transcript, then tried at least eight more times to elicit a substantive, yes or no answer — punctuated by multiple, lengthy attacks by Trump on both Engoron and New York Attorney General Letitia James — before moving on. At one point, Wallace was so exasperated by Trump’s off-topic fusillade that he simply waited for Trump to run out of gas and then asked, “Are you done?” The transcript is replete with similar examples of Trump’s inability to separate his ego from the issues.
Trump’s prior turn as a witness did meaningful damage to his defense
Most importantly, Trump’s testimony on Nov. 6 harmed his defense — even when he managed to stick to the substance. It is no exaggeration to say he gave the attorney general’s team a veritable bouquet of quotes that support their case, not his own. Among those that likely had Wallace and his colleagues internally pumping their fists are exchanges like these two, just pages into the Nov. 6 transcript:
WALLACE: … [I]s it correct that you had reviewed the Statement of Financial Condition in each of those years from 2011 to 2017 before it became final?
TRUMP: Yeah, I would look at them. It was not something that was of great urgency because I knew they weren’t badly needed in a true sense, but I would look at them. I would see them. And I would maybe, on occasion, have some suggestions. And later: WALLACE: So is it true that you were responsible for the preparation and fair presentation of financial statements?
TRUMP: Getting them information, yes. In a form of getting them information. In other words, within the first hour of his testimony, Trump made two critical admissions: 1) that he reviewed — and even corrected — his financial statements, which, despite his characterization that they were not “badly needed,” he guaranteed were true and accurate in all material respects in order to obtain loans and insurance policies; and 2) that he was responsible for giving his accountants accurate information. He also conceded that various valuations of properties at issue in the case were indeed “too high,” as with the $327 million estimated current value of his Trump Tower triplex apartment in 2016, which he blamed on a broker’s erroneously listing the apartment as 30,000-plus square feet, and the $291 million estimated current value of his Seven Springs estate in 2014. And perhaps worst of all, he gave demonstrably false answers, as when he said his family has the right to “change [Mar-a-Lago] back to a home,” a position contradicted by at least two, legally-enforceable agreements. The bottom line? It never should have been news that Trump broke a promise; we’ve been inured to that for years. But the fact that he ultimately listened to his legal team and stayed home, rather than vent from the witness stand? Well, that’s not only entirely rational but maybe that’s the only real surprise.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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