To testify or not to testify — it’s not a tough question.
It’s a reliably memorable scene in any courtroom drama: The lawyer stands up to call the next witness, the door swings open, and it’s … the priest who testifies he was at a Yankees game with the accused at the time of the crime and has ticket stubs to prove it! The decedent’s daughter, who stepped out of the shower to find her father’s bloody body, only to be exposed as an extravagantly permed fraud by Elle Woods! Mocha Joe, back to exact vengeance on Larry David for his spite store! As attorney extraordinaire (and personal role model) Lionel Hutz advised his client, Homer Simpson: “I have a foolproof strategy to get you out of here: surprise witnesses, each more surprising than the last!”
But in real life, I regret to inform you, there are no surprise witnesses. To the contrary, judges typically require prosecutors to disclose the names of their upcoming witnesses at least a day in advance, and often more than that. It’s a matter of practicality, and it goes to the defendant’s fundamental right to defend himself; it’s difficult for a defense lawyer to prepare for the next day if he doesn’t know who exactly he’ll be cross-examining. I once tried to get cute and told the judge at the end of a trial day I wasn’t sure who I’d be calling the next morning. The judge retorted, “Either give us your witnesses’ names right now or don’t bother showing up tomorrow.” Point taken.
Yet when it comes to witness lists — and, to be sure, in other respects — the ongoing trial of Donald Trump in Manhattan is more like a movie than real life. Judge Juan Merchan, in a departure from normal practice, has permitted the prosecution to call its witnesses on the fly with a bare minimum of advance notice to the defense. The DA has turned over a witness list containing dozens of names, and Trump’s team has a general idea who the witnesses will be — but as to who will testify when, the defense is learning at essentially the same time as the rest of us.
Judge Merchan has reasoned that Trump can’t be trusted not to publicly attack upcoming witnesses, and therefore has forfeited his right to advance notice. Hey, when you violate a gag order ten times, you suffer the consequences. When Trump’s lawyer Todd Blanche promised that he’d personally ensure that Trump refrained from public comment about upcoming witnesses, the judge responded, “I don’t think you can make that representation.” Tough but fair.
The result makes life harder for Trump’s defense team, but it also makes the trial more cinematic for all of us. Who’s next? Did we see anyone entering the courthouse? Could Stormy Daniels be up? Karen McDougal? Where’s Michael Cohen today? Hope Hicks reportedly drew gasps from the assembled media and courtroom observers when prosecutors called her to the stand.
Alas, there will be no surprise when it comes time for the biggest potential witness of all: the defendant himself, Donald John Trump. Let me preempt the Hamlet routine that surely will play out over the next couple weeks, the “to be or not to be” around whether Trump will take the stand in his own defense: He shouldn’t, and he won’t.
Trump, like any defendant, has an unconditional right to testify or not to testify. Nor can the prosecutor make any comment or ask the jury to draw any inference from any defendant’s decision not to take the stand. (It hardly needs to be said, but just to clear up any confusion: Contrary to Trump’s preposterous courthouse rant, the gag order has zero to do with his ability to take the stand in his own defense.)
We can already see Trump’s subtle but unmistakable retreat from bluster to sanity. At first, Trump boasted that he “would” testify in his own defense. Note the careful word choice: Would, which includes an element of conditionality, isn’t quite the same as will. Days later, he prudently stepped back: “Well, I would if it’s necessary. Right now, I don’t know if you heard about today. Today was just incredible. People are saying — the experts, I’m talking about legal scholars and experts — they’re saying, ‘What kind of a case is this? There is no case.’”
Few legal scholars are saying quite that, of course, but, overstatement aside, Trump has the right strategic idea here. Indeed, he’s got two ironclad reasons not to testify.
First: He’d get annihilated. Trump wouldn’t necessarily suffer a Colonel Jessup “You’re goddamn right I did!” moment — his self-preservation instincts are too strong for that — but he’d surely get twisted in a pretzel when confronted with the difficult questions posed by the prosecution’s case. Did he in fact have affairs with McDougal and Daniels? If not, why did he falsely deny knowing them? Did he know about the hush-money payments made for his benefit? Did he authorize them? Why? And why did he falsely claim publicly to know nothing about the women and the payoffs? Why did he sign a series of reimbursement checks to Michael Cohen? There’s little chance he’d offer coherent, consistent, plausible explanations.
That’s the risk whenever a defendant takes the stand: It essentially shifts the burden of proof to the defense table. Typically, if the jurors believe the defendant lies on the stand, it’s over. Cross-examination would simply be too fraught for Trump. He has every right to duck it, and he’d be foolish to waive that right and expose himself here.
That brings us to the second point: Trump doesn’t need to take the stand in his own defense. That’s not to argue that he’s got an acquittal locked up, not by any stretch. (I still believe a conviction is more likely than not on balance.) But it’s become clear that his lawyers have all the ammunition they need to raise a defense, even without the risk of putting the client on the stand. Why take the risk of calling Trump to the stand to deny his sexual tryst with Daniels when she already signed a statement in 2018 declaring “I am denying this affair because it never happened”? Why does Trump need to swear he never dealt with Jeffrey McConney about the internal accounting behind hush-money reimbursements when McConney admitted the same in cross? Why must Trump proclaim Michael Cohen a liar when virtually every prosecution witness who has ever met the infamous “Fixer” has ranted about how he is (or was) a mendacious sleaze?
Indeed, if Trump takes the stand, the whole case will rise or fall on his testimony. If he doesn’t, it likely will turn on Cohen’s. From the perspective of Trump’s legal team, that’s an easy call.
We’ve seen this routine before. Trump vowed that he would testify, wanted to testify, was aching to testify before Robert Mueller, in Congress, and in some of his civil matters — before he bailed out and avoided examination under oath. He did testify (sort of) at two of his recent civil trials involving E. Jean Carroll and business fraud in New York. But if Trump thinks those experiences prepared him for a criminal trial, he’s mistaken. Both times he testified in civil court, the examinations were narrow, his testimony lasted only minutes, and he essentially self-destructed on the stand anyway. In criminal court, the restrictor plates come off, and prosecutors can drill Trump about the core allegations against him for as long as they please.
As we move toward the end phase of this trial, my sense is that both sides should be satisfied — not overjoyed, but satisfied — with how the case has gone. Prosecutors have done a solid, workmanlike job building their case, and Trump’s lawyers have planted the seeds of reasonable doubt. As a defense attorney, that’s about the best you can hope for at this point: You’re in the game and you’ve got a shot to pull it out. To call Trump to the stand would upend the trial and shove all the defense chips over to an extraordinarily risky bet. For all his public bluster and equivocation, there’s simply no way Trump will engage in unilaterally assured self-destruction.
This article originally appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com
