“If Trump does testify, he likely will be destroyed": Legal expert warns Trump's plan may backfire

Former President Donald Trump may testify as soon as Wednesday in his defamation trial over his comments about E. Jean Carroll, after a last-minute delay in the case due to a sick juror.

The trial is set to continue on Wednesday following a shift in plans after the court asked for COVID-19 tests on all the jurors. Trump’s lawyer, Alina Habba, also reported symptoms of a fever after coming into contact with at least one of her parents, who has COVID-19.

Trump's legal team asked to postpone his next appearance until after Tuesday's New Hampshire primary. U.S. District Judge Lewis Kaplan did not immediately rule on a decision on the timing of Trump’s testimony, but the court system later announced that the trial was off until Wednesday.

Last week, as Carroll testified about how the former president defamed her after she accused him of rape in the 1990s, Trump sat in the courtroom muttering phrases like “con job” and “witch hunt.” 

The former longtime Elle magazine advice columnist recounted how her life changed as Trump continued to deny her allegations and branded her a liar – a narrative that has continued to persist. She told jurors that he “shattered” her reputation.

Carroll portrayed herself as an “intelligent, articulate, and sympathetic” person, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. Her “powerful” testimony described how Trump “tore her life apart” by sexually assaulting her, then denying he did it and then vilifying her in the media and online with “repeated cruel and unhinged rants” for her effort to bring him to justice for what he did to her. 

Kaplan has already found that Trump's comments in 2019, calling Carroll a liar and suggesting that she was motivated by money, were defamatory. The ongoing trial is now centered on determining the extent of damages Carroll should be granted. A jury previously awarded her $5 million in damages after finding Trump liable for sexually assaulting her and defaming her on another occasion.

It's uncertain whether Trump will testify, but Gershman expressed skepticism about the former president's likelihood of doing so pointing to an “unsympathetic jury, a tough judge, and aggressive lawyers” representing Carroll.

“If Trump does testify, he likely will be destroyed,” Gershman said. “He can deny and deny and try to attack the proceedings but the judge will not allow him to make kinds of unhinged rants that he customarily makes online and in public. We know from his deposition video that he may start off calmly but as the jury will see, he becomes loud, indignant, and defiant and then goes off the rails.”

His “performance” can only strengthen the jurors' understanding of what Carroll must have experienced and might elicit empathy from the jury. As a consequence, Trump could be forced to pay a substantial amount in damages, he added.

However, “sensationalizing” the trial and all allegations of misconduct directed toward Trump is a “persistent” strategy and goal that the former president relies on, trial attorney Bernard Alexander told Salon. It serves to “undermine” each legal claim as just another “unwarranted political and personal attack.”

“Successfully characterizing the attacks as a ‘circus’ feeds into the portrayal of Trump as an untouchable master showman who is above the law and incapable of being reined in,” Alexander said. “While each active litigation against Trump is factually separate, every ruling nevertheless seems to weigh on the successive other legal proceedings lodged against him.” 

While judges give the appearance of making “wholly independent” rulings, they cannot help but take into account the “successive and growing number” of adverse rulings, which seem to be “falling like dominoes” against Trump, he continued. 

“These adverse rulings perhaps embolden judges to make their own critical rulings despite the potential unpopular public response from Trump’s protectors and enablers,” Alexander said. “If Trump is successful in creating a ‘circus’ impression of the proceedings, rulings against him will carry less sting and minimize their impact."

Trump, known for using his court appearances as a platform for campaigning, has often spoken in front of the news cameras stationed outside the Manhattan courtroom, telling reporters that the judge “already made up his mind” and should be “disbarred.”

On his first day of the trial, he used his 2024 presidential campaign to send out email blasts as an opportunity for fundraising requesting that his supporters make a contribution “to peacefully DEFEND our movement from the never-ending witch hunts.”

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His fan base outside the courtroom will “undoubtedly accept” his characterizations of a "fake story" and a "witch hunt" as true, Alexander said. But the fact that a jury previously found Trump liable for defamation of Carroll suggests that jurors are “unlikely to be swayed” by Trump’s “non-fact-based denials.”

“It only takes one determined juror to block a verdict,” Alexander said. “Perhaps Trump is hoping to connect with one or more potential holdouts. But if the jury is successful in reaching a unanimous decision, it is likely to be against him and is likely to fuel a high jury verdict in response to (and perhaps as punishment for) Trump’s unsubstantiated denials.”

On social media, Trump has relied on similar tactics portraying himself as a victim and pushing claims that he was “wrongfully accused by a woman he never met, saw, or touched.” But in the courtroom, Kaplan has little patience for Trump’s commentary. 

The judge warned to remove him from the courtroom last week as he uttered phrases while Carroll delivered an emotional testimony. 

Trump’s removal from the courtroom may “reinforce” for the jury Trump’s “aggressive, unhinged, and unpredictable behavior” – the same qualities that “drove his sexual attack” on Carroll, his denial and then his “vilification” of her, Gershman said. 

“If the judge does his job properly, he will rein in Trump from testifying about his opinions or any facts that are not relevant to the question of damages in this case,” former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. “As a result, Trump may decide against testifying and instead focus his efforts on criticizing the process from outside the courtroom.”

In most trials, jurors take their cues from the judge, Alexander explained. Showing disrespect toward Kaplan or his rules tends to “disfavor” the party violating the rules.  Even without the judge informing the jury that it can hold Trump’s misconduct against him, jurors have the ability to “bake in” an implied levy for a party’s bad conduct. 

“The judge can always follow through on the threat to remove Trump from the courtroom if there are further outbursts,” Alexander said. “But the mere admonition and the threat of punishment can eat away at the credibility of the party violating the rules."