Former President Trump’s testimony today in the Manhattan courtroom of Judge Arthur Engoron was not the first time an ex-President has taken the witness stand. In 1915, President Theodore Roosevelt testified on his own behalf in a libel trial arising from statements he had made about a Republican state party chairman.
Like Trump today, Roosevelt was a former President who still sought to hold onto his political influence and, like Trump, Roosevelt was combative on the witness stand with the lawyer who questioned him, at one point “half rising from his seat and shaking his fist.”
But that’s where the similarity ends—because Roosevelt and his lawyers were defending him in a court case, not attacking the judicial system itself.
What caused Roosevelt to shake his fist and half-rise out of his seat was the lawyer objecting to Roosevelt “making an address to the jury” to which Roosevelt responded “No I am not” in a tone described by the New York World as nearly a shriek. T.R.’s anger also shows that he acknowledged and accepted judicial protocols like the fact that a witness does not address the jury directly but rather answers questions from the lawyers.
In contrast, today former President Trump repeatedly criticized the judicial process itself, testifying that the case brought against him was “unfair,” insulting the New York State Attorney General Leticia James—who is bringing the case— and directly insulting the judge.
There were only hints of substance and relevance in Trump’s responses. As expected, he relied heavily on the so-called disclaimer clause in the company’s financial statements, the ones which he had claimed in a previous deposition rendered the statements worthless and meaning nothing.
He also took on the question of inflated valuations by asserting that— in his opinion—values were underestimated, insinuating that his own valuations were the ones to be trusted. Mostly, Trump simply threw tantrums.
In response to a rebuke from the court for bringing up the disclaimer clause—a defense the court had previously rejected—Trump pointed his finger at Judge Engoron and shouted “He called me a fraud and he didn’t know anything about me!” He added: “The fraud is on the court, not on me.”
The morning testimony marked the high point of combativeness, with Judge Engoron asking Trump’s lawyers at one point to better control him. Trump’s lawyer responded that it was the judge’s job to control the courtroom.
Later in the day, however, Engoran appeared to have adopted the approach of the prosecutor, who at one point waited until Trump finished a long tirade before asking: “Done?”
The prosecutor, Kevin Wallace, did a solid job of not engaging in excessive fighting with Trump but simply taking him through questions. It’s a wise tactic to use with a bombastic witness like Trump. Just let them talk.
That’s a tactic often used in grand jury investigations where prosecutors bring forward a witness and let them say whatever they want. This fully previews their testimony and locks them in from changing their story later. In Trump’s case, it also had the effect of likely shortening his testimony by simply letting him meander without giving him new issues to focus upon. Indeed, Trump’s entire testimony was done by 3:30 p.m., a surprisingly short session for the star witness.
By letting Trump talk without challenging him or trying to cut him off, Judge Engoran also countered the potential strategy of the Trump legal team to deliberately goad him into making statements that could appear biased and even provide grounds for mistrial.
Such a strategy would explain the actions of Trump’s lawyers, who seem insistent on angering Engoron by continuing to focus on his communications with his law clerk and their suggestions she may be biased— a tactic that has already resulted in the court issuing a gag order against the lawyers prohibiting them from making “further comments about confidential communications between the judge and his staff inside or outside the courtroom.”
Despite this gag order, Trump lawyers told the judge that they will consider filing a motion for mistrial based on that very conduct. After showing exasperation at this, Engoron relented and said the lawyers could file the motion and even apologized for yelling at one of the lawyers.
The apology demonstrates Engoron’s experience on the bench, for by toning down the temperature he again undermines future allegations of bias on his part.
In my experience, the extent of Trump’s behavior is far outside the norm for witnesses. Ranting against the court system, prosecutors and the court during testimony would normally be considered highly unusual and even more unusual that Trump’s lawyers appear to be supporting his behavior.
I have seen far less egregious behavior by a defendant result in a request that the defendant be screened for mental competency. It remains to be seen whether Trump’s courtroom strategy will have any success legally, but Trump’s team may ultimately remember Judge Engoron’s last gesture to Trump today.
At the end of his testimony, as Trump left, Engoron raised his left hand to gesture “bye-bye.”