To testify or not to testify: Trump’s fateful choice

As he made his way from his frigid Scotland golf courses to the warm climate of Mar-a-Lago, Donald Trump had to make a delicate political calculus.

He has said through his lawyer that he will not take the stand in the E. Jean Carroll case, and thereupon he rested without calling any witnesses. Trump said he thought the case was going well.

Then he appeared to make an 11th-hour about face on testifying, saying, “I will probably attend (the trial), I have to go back for a woman that made a false accusation about me.”

The judge, Lewis Kaplan, gave Trump’s lawyers until Sunday to make a motion to re-open the defense’s case to present Trump’s testimony, and he would consider the motion. Trump did not meet the deadline.

Trump’s on-again, off-again approach to testifying reminds me of a childhood friend with whom I played chess. Characteristically, he would move a piece but not take his hand off it until he had spent endless time assessing the situation. My friend later became a federal judge, and on the bench was somewhat more decisive.

Trump, having decided not to testify, will face an almost certain plaintiff’s verdict. The New York jury, consisting of six men and three women, all told the judge at the outset that they had never attended a Trump rally and believed he had lost the 2020 election to Joe Biden. All Carroll needs to do is convince them that it is more likely than not that the rape occurred, the test of the proof in a civil case.

If this happens, Trump can continue to denounce the process by playing into the meme that Carroll’s case was motivated by political objections to the former president, particularly as he angles for another stint in the White House, a line that never fails to mesmerize his base. From Scotland, Trump denounced the defamation trial as “bogus,” the trial judge as “extremely hostile” and Carroll as having made up a “most ridiculous, disgusting story.”

If Trump had taken the stand, however, it would have been a disaster. Great for him, if he conned the jury, grabbed them and won the case. Of course, his track record has never been good in the courts. But if he had lost the case after testifying, he would have appeared as someone who is weak, a loser, an unworthy bearer of the standard of the right.

If Trump had been permitted to testify, his credibility would have been on the line. He would have had to face withering cross examination with a tough federal judge managing unresponsive and argumentative answers to keep him on track.

Cross examination provides the most dramatic moment of a trial, leaving an indelible impression on the jury. There is an art to discrediting a witness, and Carroll’s lawyers would have been more than up to the task. The fields of cross examination are fertile, and just a few questions would have done it:

• You said you never met Ms. Carroll, Mr. Trump. The fact is you did. There is a photograph. Were you mistaken, Mr. Trump, or were you lying?

• Bergdorf Goodman is a department store across the street from Trump Tower, where you lived and worked at the time, Mr. Trump. Just a hop, skip and a jump. Is it your testimony that you never went there in the 1990s? You have said you did maybe once. Wasn’t it more than once? How many times, Mr. Trump?

• When you went to Bergdorf’s, were you ever in a dressing room? Was it never? Do you have a positive recollection that it was never? Did you ever go there to buy a gift for someone?

• You said, did you not, that Ms. Carroll, was “not my type.” Then you misidentified her in a photograph as your ex-wife Marla Maples. Was Marla Maples your type or not your type?

• Did you tell Billy Bush that you once “took a woman furniture shopping,” and “moved in on her like a bitch,” but “couldn’t get there.” Took a woman furniture shopping, Mr. Trump. Just like you took E. Jean Carroll shopping before moving in on her?

• Did you consider yourself a “star” in the 1990s? Did you believe that a star can “go up to women and start kissing them, don’t even wait and can do anything, and grab them by the p—-?” You so testified in your deposition, didn’t you?

• Did you shove Jean Carroll against a wall in a dressing room at Bergdorf Goodman department store and rape her? Did she lie under oath to this court?

• How about Natasha Stoynoff? Was she lying when she testified that you pushed her against the wall and kissed her in a vacant room at Mar-a-Lago?

• AndJessica Leeds? She testified in this courtroom when you weren’t here that you grabbed her and groped her on an airplane. Was she lying?

Trump is a latter-day Ananais, someone who notoriously can’t get his story straight. The Washington Post counted 30,573 false or misleading claims he made over the four years he held office. The day before the 2020 election, the Post reported, Trump “made 503 false or misleading claims as he barnstormed across the country in a desperate effort to win reelection.” His “tsunami of untruths” rose the longer he served in office, increasing from an average of six claims a day in his first year as president to 39 a day in his final year.

But it is one thing to lie while campaigning for reelection in the court of public opinion, another to lie under oath in a courtroom. If he had testified and lied in even a single instance, the jury might have believed that he was lying about everything.

Yes, Trump was well advised to stay off the stand; he has too much to lose. Had he arrogantly taken the stand, he might have learned, as did Oscar Wilde and Alger Hiss, that cross-examination may prove his undoing. 

James D. Zirin is a former federal prosecutor in the Southern District of New York. He is the author of the 2020 book “Plaintiff in Chief—A Portrait of Donald Trump in 3500 Lawsuits.”