After brashly declaring he wanted to testify in his criminal trial, it appears increasingly unlikely that Donald Trump will do so, as the jury seems poised to hear closing arguments next week.
Even so, defense attorneys often try to hold out until the last possible minute to say whether their client will testify, hoping to keep prosecutors guessing.
In Trump’s case, the judge’s discussions with lawyers in recent days indicate that even if the defense calls a small number of witnesses, they do not expect Trump to be one of them.
Four people close to the former president said next week’s plan does not include him testifying, and they expect the jury to start deliberating later in the week. Trump is famously mercurial and could always demand to testify, some of these people said, who spoke on the condition of anonymity to describe internal deliberations. Todd Blanche, a lawyer for Trump, declined to comment.
“Taking the stand to testify in your own defense is a high-stakes gambit that generally does not end well for the defendant,” said Robert Mintz, a former federal prosecutor now in private practice. “While it provides an opportunity for the defendant to look the jury in the eye and tell their side of the story, it also essentially allows prosecutors to retry their entire case on cross examination.”
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Donald Trump was found guilty on all 34 counts of falsifying business records. Will Trump go to jail? Can he be president? We explain what’s next.
Particularly in this case, Mintz said, Trump would have “little to gain” by testifying, since the defense strategy has been so focused on the credibility problems of Michael Cohen, Trump’s former fixer. Putting Trump on the stand might shift that focus away from the defense’s strongest argument.
The defense may still call other witnesses, however. Blanche said in court on Thursday that the defense would like to call Brad Smith, an expert on federal election law, even though the judge has put strict limits on what he can testify about in this case because the jury’s job is to make findings of fact, not law.
Blanche said he was also weighing whether to call a small number of defense witnesses, though he expected they would not take much time.
“It sounds like we might possibly be done with the presentation of evidence on Monday,” New York Supreme Court Justice Juan Merchan said Thursday, the most recent day court was held.
Blanche quickly added, “I was not speaking about President Trump, obviously. … That’s another decision that we need to think through.”
If Trump were to take the stand, such testimony could take many days, which would significantly extend the trial.
Trump has been on trial since April 15, charged by Manhattan district attorney Alvin Bragg with 34 counts of falsifying business records to hide a 2016 hush money payment to adult-film actress Stormy Daniels.
Daniels was first paid by Trump’s then-attorney, Cohen. The following year, Trump made monthly payments to Cohen that were recorded as fees for a legal retainer, but prosecutors say those transactions were crimes because they created a fake paper trail designed to hide what should have been categorized as a campaign expense.
Trump, the presumptive GOP nominee for president, has pleaded not guilty, and his defense has argued he was not involved or aware of the reimbursement scheme that is at the heart of the case.
Leading up to the trial, Trump told reporters that he would like to testify in his defense.
“Yeah, I would testify, absolutely,” Trump said. “I’m testifying. I tell the truth. I mean, all I can do is tell the truth, and the truth is that there is no case.”
The first former U.S. president to go on trial, Trump faces three other indictments in other jurisdictions. It’s possible the New York case is the only one that goes to trial before Election Day.
Special counsel Jack Smith has charged Trump in Florida with mishandling classified documents and obstructing government efforts to retrieve them. The judge in that case has postponed the trial indefinitely.
Smith has charged Trump in Washington with conspiring to obstruct President Biden’s 2020 victory — a case that is on hold while the Supreme Court wrestles with Trump’s claim of presidential immunity.
And in Georgia, Fulton County District Attorney Fani T. Willis has charged Trump with conspiring to block the election results in that state. The judge in that case has yet to set a trial date.
Trump has pleaded not guilty in all those cases.
In the New York case, Merchan prepared for the possibility that Trump would take the stand by issuing rulings specifying what he can and can’t be asked about on the witness stand. Such rulings cover a lot of ground for a defendant like Trump, who has a long history of litigation, accusations and public declarations.
Merchan ruled that Trump could be asked on the stand about a recent civil court case in which a judge concluded that he and others carried out a years-long financial fraud; his violations of a gag order in that case; and his two separate court losses to the writer E. Jean Carroll, who sued him for defamation and battery.
When Trump took the witness stand in one of those cases earlier this year, it did not go well.
Before letting Trump testify, U.S. District Court Judge Lewis Kaplan had angrily emphasized how narrow the questioning would be.
Nevertheless, the former president blurted out some answers that went behind the judge’s boundaries, and those comments were immediately struck from the record.
Trump was visibly angry, and complained bitterly as he walked out of the courtroom, “this is not America.”
The jury returned an $83.3 million verdict against him.
