Why a New York Judge Abandoned Plans to Get Trump Under ‘Control’ in Civil Fraud Trial

Repeatedly challenging the judge with the power to sink his business empire, Donald Trump made one thing abundantly clear at his civil fraud trial on Monday. The former president has abandoned any hope or strategy of trying to persuade Manhattan Supreme Court Justice Arthur Engoron of ruling in his favor at the trial level. 

Instead, Trump’s freewheeling testimony appeared designed to openly antagonize the judge and convince his political base that the lawsuit is political theater. 

"This is a very unfair trial,” Trump complained less than an hour into the proceedings. “Very, very unfair, and I hope the public is watching it."

Time and again, Trump used the witness stand to take shots at Engoron as “unfair” and New York Attorney General Letitia James as a “disgrace.” He described the case against him as a “witch hunt” set against a long line of legal actions by “Democrat” prosecutors “all coming after me from 15 different sides."

"Weaponization, they call it," Trump said, adopting the framing of his Republican congressional allies.

It was a remarkably defiant performance for any trial, let alone a bench trial. 

Engoron, who is deciding the case without a jury, has the extraordinary power to put Trump, his sons, and his business associates permanently out of business in the state of New York — and make him pay hundreds of millions of dollars in “ill-gotten gains.” The judge warned Trump that he would cut his testimony short if he did not stop answering questions with non-sequiturs and speeches. 

“This is not a political rally,” Engoron said, adding that he could sanction Trump by drawing an adverse inference on his answers. 

In legal parlance, that would mean that each of Trump’s answers would have been deemed damaging to his defense. Trump seemed to ignore the threat, but Engoron held his fire, allowing Trump to spend the better part of four hours largely boasting about his wealth, attacking the attorney general, swiping at the judge, and occasionally, answering the questions as they were posed to him. 

Former federal prosecutor Mitchell Epner identified a two-pronged strategy behind Trump’s performance.

“Trump was neither testifying for trial or appeal, but rather to make his case in the court of public opinion,” said Epner, a partner at Rottenberg Lipman Rich PC. “He treated the case as a lost cause, and dared Justice Engoron to hold him in contempt.”

Shortly before Trump took the stand, Rolling Stone reported that sources close to Trump’s legal team disclosed a strategy to bait Engoron into an overreaction that could serve the purposes of their appeal. Trump’s legal team already has multiple matters pending before New York’s Appellate Division, First Department, which threw out the case against daughter Ivanka Trump. 

One of the appeals seeks to overturn Engoron’s pre-trial ruling finding Trump liable for fraud, which ordered the dissolution of the former president’s New York business empire. Trump’s attorneys are also fighting a sanctions order against them for repeating “frivolous” arguments and gagging their client from mentioning the judge’s principal law clerk. Engoron found Trump violated that order twice, and the judge threatened that he would possibly imprison the former president if he did it again. 

At least so far, that hasn’t happened, and Trump’s provocations never crossed the bright line of the gag order. Engoron seemed to believe, however, that Trump disregarded the judge’s instructions to respond only to the questions and not give speeches. He said the attorney general’s lawyer Kevin Wallace showed “patience” with Trump and seemed to “tolerate” lengthy digressions without objecting.  

In one instance, Trump argued that the case shouldn’t have been brought to trial because his financial statements included lengthy disclaimers that he called a “worthless clause.” The provision, Trump said, “goes on forever.”

"That clause isn't the only thing that goes on forever," Wallace deadpanned, to laughter in the court.

But his snark aside, Wallace didn’t demand any action from the judge, who seemingly abandoned his effort to, as he put it, “control” Trump. 

Epner, the former federal prosecutor, believes that the judge’s abstention was strategic.

“After warning he would take action, Justice Engoron apparently decided that he would not sanction or strike testimony by Trump, which makes sense in a bench trial where he is the sole arbiter of how much weight to give testimony and how to evaluate credibility,” Epner said. “An appeals court might second guess Justice Engoron’s decision to strike or sanction, but it would never second guess his credibility determinations.”