Donald Trump will, in all likelihood, not take the witness stand in New York. His trial will end quite soon after the cross-examination of Michael Cohen is completed.
The risks for Trump in testifying are formidable. He would have to face fiery cross-examination. And he is unlikely to be believed. Judges often charge the jury that a defendant has a motive to lie like no other witness.
In our system, a defendant is not required to take the stand. The Constitution’s Fifth Amendment commands that “no person shall be compelled in any criminal case to be a witness against himself.” The burden of proof is on the prosecutor to prove guilt beyond a reasonable doubt, and that burden never shifts.
The prosecutor is not even allowed to comment to the jury on the defendant’s failure to take the stand, but jurors will obviously know it. In his charge to the jury as to the law, Judge Juan Merchan may instruct them that they are to draw no inference from the Trump’s failure to testify, but most judges first ask defense counsel whether they should even give such an instruction. It’s like telling a child not to put buttons in his nose — it will occur to him for the first time it’s a neat thing to do.
Every criminal defense lawyer knows that it is often a smart strategy to keep the defendant off the stand. Failing to testify is often a path to acquittal. Trump’s mentor, the rogue lawyer Roy Cohn, was tried four times in federal court and never took the stand. He was acquitted each time.
The concern will be that the jury expects Trump to take the stand — as does the ultimate jury, the American voters who make up the court of public opinion. If he is truly innocent, some may wonder why he doesn’t get up there and scream his innocence to the sky, trash the witnesses, the prosecutors, the judge and the rule of law, as he has in his recess speeches in front of stark aluminum police barriers. He certainly knows how to yell.
Most defendants will take their lawyer’s advice to remain silent, just as most patients leave decisions about surgery to the doctor. But Trump is no ordinary client. He has shown himself to be out of control. What ordinary defendant in his right mind would threaten the daughter of the judge in his own case?
But, were Trump to testify, his story would surely endanger his case. He could deny having sex with Stormy Daniels. He denied his sexual attack on E. Jean Carroll, and a jury did not believe him. If the jury disbelieves him on this point, they may disbelieve everything he says. There is an old legal maxim, “false in one respect, false in all respects.”
Trump could lie, saying that he didn’t know about the payoff, and it was all arranged by Michael Cohen without his knowledge and approval, but this whopper won’t fly. He admitted knowing of the reimbursement in a tweet and in court papers. To apply common sense, as Mitt Romney said, if he didn’t have sex with her, why make the payoff? $130,000 isn’t exactly chump change, even for Trump.
If he admits knowing of the payoff and the coverup, believing it was all legal, he has a problem, because it will go far down the road to corroborating Cohen’s testimony.
Trump could say that he made the payoff because the false accusation of adultery with a porn actress would change his family’s perception of him with no concern about the revelation’s effect in the run-up to the election. Tell me another.
Once he admits knowing of the payoff scheme, he would be hard pressed circumstantially in light of the pre-election timing to state that he was more concerned about his family than about getting elected. Cohen said Trump made the payment to shut Stormy up before the election since, coming on the heels of the “Access Hollywood” tape, the revelation would be a campaign disaster. It all has the ring of truth.
And if Trump does not take the stand? The jury has been told to use the common sense that they employ in their daily lives. Cohen’s story adds up, and will stand unrefuted. The facts that will not disappear on this record is that all these sleazy “catch and kill” agreements and hush money payoffs with checks cut against false invoices only benefitted one man: Donald Trump.
Cohen’s evidence is corroborated by the paper trail, by the nine checks that Trump personally signed in the White House, attached to stubs and invoices stating the false purpose that the payments were for “legal services.” Trump knew that Cohen never rendered legal services. If Trump takes the stand, he might say, “What did you expect the invoices to say, ‘for hush money to a porn star’?” But it is exactly this concealment of the true purpose of the payments that is at the heart of the case.
Reasonable doubt is a bulwark of due process. It is the kind of doubt that makes people hesitate in their daily lives before embarking on an important course. If Trump takes the stand and lies to the jury, reasonable doubt will disappear.
But, if Trump fails to testify, as most lawyers expect, even if he is acquitted, there will abide the lurking suspicion in the minds of the public about why he did not take the stand.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.