Editor’s note: Dennis Aftergut, a former federal prosecutor, is currently counsel to Lawyers Defending American Democracy, a nonpartisan organization dedicated to preserving the rule of law. The views expressed here are his own. Read more opinion at CNN.
Years ago, as a prosecutor prepping unsavory witnesses — cooperators against drug kingpins, for instance — I would tell them in no uncertain terms: “If you lie or exaggerate the truth on the witness stand, I will come after you for perjury like a runaway truck on a steep incline.”
Unfortunately, Donald Trump probably will not have heard that kind of threat from his attorneys in the days leading up to his momentous court appearance Monday. They don’t have that kind of power over their headstrong client.
In what will be a historic moment for the nation and a hugely consequential one for the president, New York Attorney General Letitia James is set to call the former president to the witness stand in her civil fraud case against him and the Trump Organization.
Sticking to the truth will likely be a tall order for Trump. I suspect that he may also find it challenging to follow the kind of coaching his lawyers often tell their clients such as “Keep your answers short” and “Don’t offer anything, including explanations, unless asked.”
Trump’s lawyers are probably also telling him, “Above all, don’t say anything that could incriminate you. Take the Fifth if you have to, even if in this civil trial, the judge can draw adverse inferences against you in the case.”
After all, it can never be far from the minds of Trump’s defense lawyers that US Justice Department special counsel Jack Smith and Fulton County, Georgia, District Attorney Fani Willis can use anything their client says in court cases they are prosecuting against him.
In the New York trial, which began on October 2, James alleges that false financial statements filed by Trump between 2011 and 2021 inflated the value of some assets on his financial statements to procure favorable bank loans while undervaluing others to reduce his tax bills.
At this point in the case, James’ team doesn’t need to do much: Judge Arthur Engoron ruled in September that she had proven the first count of her fraud case, so she already has what she needs to hold Trump liable.
James’ main job now is to prove that Trump should pay $250 million in damages she says is an appropriate penalty in the case, as well as making the case for another remedy — taking away Trump’s license to conduct business in New York and putting his companies into receivership.
Lawyers generally prefer not to put all their eggs in the basket of a single claim in case an appeals court finds fault with it, and James is no different — she wants to prove that Trump is liable on six additional fraud counts.
To do so, she also needs to prove that the misrepresentations he allegedly made were “material” — that they caused financial harm to the victims — and that the defendants deliberately intended to deceive them. Prosecutors have already done much of that as well.
On the issue of materiality, an expert testified last week that the false statements cost banks $168 million in lost interest compared with what they would have charged if accurate valuations had been provided.
On the issue of intent, in last week’s testimony, Donald Trump Jr. and Eric Trump both attempted to shift the blame onto their accountants.
But because the brothers were officers of the company, they had a legal duty to investigate and affirm the accuracy of the property valuations that they were offering banks as collateral. By essentially admitting their own “reckless disregard” of the truth, the sons gave prosecutors the evidence the law requires to prove fraudulent intent.
Meanwhile, Trump’s eldest daughter, Ivanka, is scheduled to testify later this week after losing her “Hail Mary” appeal that she shouldn’t have to testify when her children are in school. Apparently, her appeal was unconvincing: Appellate judges are quite aware that trial courts are only in session during the week.
Trump’s testimony as the CEO of the global business that bears his name will be a blockbuster moment and could dramatically affect the financial fortunes of the former reality television star. James’ main goal will be to show Trump’s reckless disregard about the true valuations of his assets. And she hopes to convince the judge that he should no longer be allowed to hold a business license in New York state.
Whichever prosecutor cross-examines the former president already has a couple of aces in the hand. First, the judge has already rejected a key route Trump tried to avoid an admission that he intended to defraud the victims.
In his deposition ahead of the trial, Trump asserted that the boilerplate legal language on the statements asserts that the financial estimates “are not necessarily indicative of the amount that could be realized upon the disposition of the assets or payment of the related liabilities.”
Trump put a finer point on the matter during his deposition, saying: “I have a clause in there that says, don’t believe the statement, go out and do your own work.”
But Engoron’s decision that found Trump liable on James’ first fraud count rejected those disclaimers, noting that the “clause does not use the words ‘worthless’ or ‘useless’ or ‘ignore’ or ‘disregard’ or any similar words.”
We already know that the judge doesn’t like it when defendants assert claims that he has already rejected. He fined Trump’s lawyers for doing just that. Yet Trump is “locked in” by having relied heavily on this language in his deposition. He can hardly disown it now, having testified to it under oath. No doubt the assistant attorney general will invite him to repeat the statements made during the deposition as much as possible during this time on the witness stand.
And the prosecutor who cross-examines him needs only to get Trump to do what comes naturally to him — bluster: Trump’s sizable ego means that he will more than likely be eager to inflate his personal wealth. As Michael Cohen, Trump’s one-time fixer who knows him well, told Newsweek last month: “The Forbes 400 list … represents his id, ego and superego all rolled up into one very insecure man baby.” Being kicked off that list last month was a grave wound to Trump’s self-esteem.
On the witness stand, he may be tempted to brag about his net worth in ways that exceeds what the evidence shows — bombast that the court likely will not look charitably on. One might expect, for instance, that the assistant attorney general will press Trump hard on why his bank loan documents say that his Trump Tower apartment is three times its actual size. The cross-examiner wins in that courtroom exchange, whether Trump continues to exaggerate its size or blames somebody else.
The state’s attorney will likely also question him in detail on what the evidence shows — that his financial statements overestimated his net worth every year by $812 million to $2.2 billion. Again, the attorney general wins whether Trump denies it, or whether he doubles down on what the judge has called Trump’s “fantasy world” financial claims.
If the past is prologue, Trump likely will continue to deny liability: Blowing smoke is simply in the nature of a narcissist. That’s especially true for one who seems to be without any sound legal strategy, but rather only a political one: Keep sending the base a message of defiance, win the 2024 election and let his incoming Justice Department end any prosecution or, if there has been an appeal, drop it. Alternatively, Trump could try to pardon himself.
Before reelection, however, there’s Monday’s court appearance: One final bit of advice coming from Trump’s lawyers is that they likely have counseled him to try to show a bit of humility on the witness stand.
But once again, that’s simply not in his DNA — nor is it part of his political strategy. After all, Trump can’t back off from his past braggadocio and at the same time project to his followers that he’s the same Trump they desperately want him to be.
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