Experts: Trump’s closing argument rejected because he made it clear he "would abuse the privilege"

Former President Trump, who planned to present his own closing argument this week in the extensive New York fraud trial that poses a threat to his business empire, had his permission rescinded this afternoon, The Associated Press reported. 

The decision came after Trump’s legal team objected to the judge’s requirement that the former president stick to “relevant” matters. Earlier this week, a lawyer for Trump notified Judge Arthur Engoron about the former president's desire to address the court during closing arguments, a plan that the judge initially approved.

The lawsuit filed by New York Attorney General Letitia James accuses Trump, his two children and the Trump Organization of "grossly" inflating his net worth by billions of dollars on financial statements to secure better business loans and insurance. 

Legal experts had described Trump’s request to present the closing argument as "highly unusual" and potentially even a strategy to deliver a political speech rather than an opportunity to defend himself.

The judge became concerned that Trump would use the courtroom as “political theater” to stoke all of his anger and resentment against the prosecutor and the judge for “orchestrating a sham prosecution against him,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. His move would have likely had “zero impact” on the verdict and penalties anyway, but instead would have been perceived as “gospel” by his followers and “blather” by his critics.

“It became clear that he would engage in the kind of inflammatory rhetoric, irrelevant rants, and false insinuations that no lawyer would be allowed to make,” Gershman said. 

If his permission to present closing arguments hadn’t been rescinded, Trump would have spent his time making extraordinary claims about how the banks and insurance companies “loved to do business” with his “‘beautiful’ company” regardless of the technical accuracy of his applications, Gershman said. Some of his arguments would have included claiming that “nobody was cheated financially,” and that he was “a victim of a vendetta by an ambitious prosecutor in tandem with a biased judge.” 

Even a lawyer would not be allowed to make the kinds of arguments that Trump would have attempted to make, Gershman explained, pointing to the rules of trial procedure. A lawyer in a closing argument cannot make inflammatory statements, refer to evidence that has not been presented at the trial or vouch for his own personal credibility like calling witnesses “liars” or saying “I know what’s true and what isn’t true,” but Trump would likely have made such statements.   

Throughout the trial, Trump has frequently used the spotlight to denounce the case as politically motivated and even extended this rhetoric to social media, where Engoron and his court staff have all been subjected to attacks. 

In the courtroom, his testimony also went off the rails with the former president evading questions, veering off into unrelated topics and even labeling the attorney general's office as "haters." That led Engoron to direct Trump’s lawyer to "control him" and emphasize that "this isn't a political rally."

While speaking with reporters, Trump has described the case as a “scam" that "should never have been brought” and be “dismissed immediately." He has called the court a “fraudster in this case."

The judge's recent decision affirms that, despite the former president's plans to deliver his closing argument alongside his legal team's summations, Trump won't have the opportunity to present his own arguments tomorrow.

“Not having heard from you by the third extended deadline (noon today), I assume that Mr. Trump will not agree to the reasonable, lawful limits I have imposed as a precondition to giving a closing statement above and beyond those given by his attorneys, and that, therefore, he will not be speaking in court tomorrow,“ Engoron told Trump’s attorneys, CNN anchor Kaitlan Collins reported.

It never happens that a defendant gives a closing unless they represent themselves, David Schultz, professor of political science at Hamline University, told Salon. Trump would be “using the closing as a political speech and not a legal defense.”

“More often, you see a defendant speak at his own sentencing, asking for mercy,” former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. This move would have been “very risky.”

If Trump had said something “ill-advised” due to his lack of legal training, it could bring “negative repercussions” for his case, McQuade explained. If he said something that is “knowingly false,” it could even result in perjury charges. 

The former president’s plans in the trial have shifted before. In December, he was slated to provide testimony for the second time but canceled the day before, stating he had "nothing more to say." But this time, the changes happened as a result of a decision the judge made. 

Trump's move to personally address the court during the closing arguments could have been strategic since he knows he “cannot prevail” in this case and may see some possibilities of winning on appeal, Gershman pointed out. 

His personal plea and reference to his “victimhood” would not have been made to Judge Engoron, but to his supporters and maybe the New York appellate courts, Gershman said. 

“Although it’s a distortion of courtroom procedure and extremely unusual for a judge to allow a party to make a closing argument, the judge apparently wanted to demonstrate he was fair and impartial and therefore give Trump the opportunity of presenting closing remarks,” Gershman explained. “But when it became clear that Trump would abuse the privilege, and make statements that had nothing to do with the facts in the case, the judge decided to rescind his permission.”

After Engoron initially approved Trump’s request, he said the former president would have to limit his remarks to “commentary on the relevant, material facts that are in evidence, and application of the relevant law to those facts.”

"He may not seek to introduce new evidence," Engoron wrote. "He may not 'testify.' He may not comment on irrelevant matters. In particular, and without limitation, he may not deliver a campaign speech, and he may not impugn myself, my staff, plaintiff, plaintiff's staff, or the New York State Court System, none of which is relevant to this case, and all of which, except commenting on my staff, can be done, and is being done, in other forums.”

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If Trump “violates” any of these rules, the judge warned he would “not hesitate to cut him off in mid-sentence and admonish him."

But the former president “refused” to accept the conditions that the judge imposed on him, namely, “to stick to the facts” and avoid making “irrelevant or inflammatory arguments, the same kinds of courtroom rules that apply to all lawyers,” Gershman said.

Trump is not a lawyer and lacks training, therefore his arguments would have been nothing more that “an advancement or dis-advancement of his attempt to become president of the United States,” Jamie White, an attorney who handles criminal defense and civil rights cases, told Salon. The judge sees that for what it is and is not going to allow the court to be a “platform for things that are outside of the parameters of what’s appropriate in a courtroom.” 

The civil fraud trial has lasted more than two months, with testimony finishing up at the end of last year. The former president and the judge frequently clashed during the trial, mainly due to a gag order imposed by Engoron, barring Trump and his legal team from making comments about his principal law clerk.

The former president has largely defended his actions claiming he "never felt that these statements would be taken very seriously," and that some of the values listed were based on "guesstimates." 

James disputes the value of some of Trump's most well-known properties, including his triplex apartment at Trump Tower in Manhattan, his Mar-a-Lago resort in Palm Beach, Florida, and his golf course in Aberdeen, Scotland.

The New York attorney general’s office is seeking more than $370 million from Trump and his co-defendants in the case and also issuing a permanent ban on the ex-president and two top executives from doing real estate business in New York in addition to issuing a five-year ban on Donald Trump Jr. and Eric Trump.

Prior to the trial, Engoron ruled that Trump and his co-defendants were responsible for fraud, shifting the focus of the trial towards other allegations, including conspiracy, insurance fraud, and falsification of business records.

A defendant speaking during closing arguments is usually in the context of “someone going off the deep end and trying to interrupt the attorney,” which is common in criminal cases, White said. This also occurs in civil cases when a defendant believes their attorney is not addressing the necessary points, leading them to stand up and make additional statements.

Looking at the judge’s decision and the context, “this was clearly an attempt to keep some semblance of control in the courtroom and not allow it to be a podium for Mr. Trump’s shenanigans and political endeavors,” White said.