Another Result Before It Happens: The Trump Civil Case In New York

// Some things are predictable.

Before the jury came back, I told you that Trump would lose the E. Jean Carroll rape case.

I also told you that the result of that first E. Jean Carroll trial would dictate the result of the next one. The next trial isn’t scheduled to begin until January, but I told you months ago that Trump will lose; the only open question is the amount of damages that will be awarded. (I stand by that prediction. It’s correct.)

So, if I’m that clever — or at least sufficiently clever to be able to read and think — what will happen in the case that’s currently in trial between New York Attorney General Letitia James and the Trumps?

First, the Trumps will lose. You don’t have to be too smart to predict that because I did the judge has already ruled, on summary judgment, that the Trumps committed fraud. All the judge is considering now is the amount of restitution the Trumps must pay (and perhaps other remedies). So don’t be confused by all the news coverage: Trump has already lost. The press is (appropriately) covering the testimony that witnesses are giving, but the final result is not in doubt.

Second, the Trumps are doing almost nothing at trial that helps their cause. It’s pretty unusual for a lawyer to be sanctioned for making frivolous arguments in court. (I don’t know if there are empirical studies about this, but I’d bet the average lawyer goes a lifetime without ever being sanctioned by a court.)

Trump’s lawyers are different: Judge Engoron has sanctioned Trump’s lawyers for making frivolous arguments. That reflects pretty poorly on the lawyers. Engoron also sanctioned Trump himself — twice — for attacking the judge’s clerk after the judge issued a gag order forbidding Trump from doing so.

But that’s not enough for Trump. Trump routinely publicly attacks the judge.

None of this helps Trump’s cause.

Third, the routine that Don Jr. and Eric used when testifying last week is as old as the hills, and it won’t work.

We all know that “success has many fathers; failure is an orphan.” Anyone who’s defended commercial cases for a few years has seen this proverb play out repeatedly. Everyone in a company is delighted to take responsibility for a good decision.

But defense counsel asks each of the four players who were in the room when the bad decision was made whether they personally made the bad decision: “The decision that got your company sued doesn’t look like a very good one. Who made that decision?”

Person No. 1: “I know the decision affected my line of business, but I was only making a recommendation. I wasn’t responsible for the decision.”

Person No. 2: “I was on the committee that reviewed that decision, but it wasn’t my area of expertise. I was relying on others.”

Person No. 3: “The committee wasn’t really approving anything. We were just hearing about how the business operated.”

Person No. 4: “None of the accountants or lawyers said there was any problem, so things just floated by. I didn’t pay much attention.”

Failure is an orphan.

Every time any institution makes a bad decision, you’re writing in the passive voice: “A decision was made.” You can never identify who made the decision; no one’s willing to take the blame.

Things can get heated sometimes: “As your lawyer, I can’t go into court and say that no one made the damned decision. Someone made the decision, and that person will have to defend the decision under oath in court. Which of you made the decision?”

Crickets.

So Don Jr. and Eric Trump think they’re being clever when they testify under oath that they didn’t approve financial statements. They were just running the company. They got numbers from the accountants who were really the decision-makers. (The accountants, of course, say that they relied on the Trump Organization to provide honest numbers. It’s a tale as old as time: No one made the bad decision!)

Hence my prediction: The judge will reject this testimony (because he’s undoubtedly heard it many times before) and find Don Jr. and Eric not to be credible.

I’m writing this column over the weekend, before the former president takes the witness stand, but my final prediction is that Engoron will also reject certain testimony that he hears from Donald Trump.

Here’s my thinking: First, Engoron has already found that many of the financial statements prepared by the Trump Organization contain false statements. That reflects poorly on the folks running the Trump business; they lied for years, in multiple documents. The judge is not going to change his mind about that fact, and the fact reflects poorly on Trump.

Second, the judge has already heard from Donald Trump — during a brief sanctions hearing — and found Trump not to be credible (which means that Trump lied under oath). The judge thus knows in advance that a liar is about to take the witness stand.

Third, the testimony that Donald Trump will give on Monday is going to hurt Trump, likely in two ways. When he denies that he had knowledge of certain issues, he’ll be confronted with documents showing that he did have knowledge.  That happened with Don Jr. It happened with Eric. It will also happen with Dad, and it won’t reflect well on Dad.

Moreover, Trump may invoke the Fifth Amendment and refuse to testify about certain issues when he’s asked about them on Monday. The lawyers from the Attorney General’s Office know full well that Trump will look terrible if he refuses to answer questions because the answers would incriminate him. If that happens, the judge will be permitted to presume that Trump’s testimony on those subjects, if it had been given, would hurt Trump’s cause. If Trump takes the Fifth, Engoron will use that presumption against Trump in his ultimate decision.

It should be relatively easy for the the AG’s lawyers to force Trump to invoke the Fifth Amendment at trial. As just one example, Trump reinstated himself as trustee of his business trust on January 15, 2021, before he handed over the White House to Joe Biden on January 20. That decision will cause Trump heartache in his criminal trials: Why did Trump put himself back in charge of his business — which suggests Trump was returning to the private sector — on January 15 if Trump truly believed that he was still president for another four-year term? And if Trump knew he had lost the election, why was he conspiring with others to keep power?

If Trump has any sense — or if he simply has competent lawyers — he will decline to answer questions on this subject for fear of self-incrimination. Engoron will then presume from that invocation of the Fifth Amendment that Trump’s testimony would have hurt his cause at trial.

Thus, the Trumps will lose the civil case pending in New York, and the judge’s opinion will castigate the whole family.

How about timing? When will the Trumps lose?

I can’t help with that one. Engoron’s the judge; I’m not. He will issue the opinion whenever he cares to. I suspect that he’ll issue the opinion reasonably promptly — perhaps within the next several months — but the timing is up to him.

On the other hand, I can intelligently predict the length of his opinion: Engoron’s decision on summary judgment was 35 pages long; he’s taking this case seriously.  Engoron knows that the whole world is watching the current trial. Engoron knows that the Trumps are certain to take an appeal from his decision. Engoron’s decision after trial will thus be long, detailed, and written to persuade the public and to avoid reversal on appeal.

How much will the Trumps lose?

Sorry: This would once again be pure guesswork. To have an informed opinion on this subject, I would have to study the opinions of the expert witnesses in the case. Even then, the judge could have a surprise. I have no idea — none — how much the judge will order the Trumps to pay in restitution.

There you have it.

Sensible journalists report things only after they happen. That’s the intelligent course, so it doesn’t restrain me.

I report things before they occur.

By early next year, I suspect, we’ll know how I did.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

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Courts, Donald Trump, Government, Letitia James, Trials