Should Donald Trump have testified in his own defense?
Would his performance as a witness have turned the New York jury who on May 30 found him guilty of 34 felony counts of falsifying as legal expenses the hush money paid to quash the threatened publicity of his one-off with porn performer Stormy Daniels?
Or was it a preferred strategy to avail himself of the unambiguous right to keep silent?
It’s a good time to pursue the question, while Trump awaits sentencing and runs out his string of appeals. The debates are lively, even though now with hindsight the question lacks a meaningful answer. Its complexities will be assessed both by doubtfully qualified commentators and courtroom groupies, gassing around on the media platforms, but also by serious observers of trial tactics - defense counsel, academics and students. They will all try to slice and dice the nuances of the common if opaque cliché that while a jury wants to hear a defendant’s first-hand story, a choice to testify risks worsening an already difficult situation.
Over a career involving a significant catalog of large-scale white-collar criminality, I have worked on, watched and studied enough trials to believe that, while prosecutors and defense counsel alike will do all they can to shape their best case, it is a fool's errand to predict a jury result. Every criminal trial has its own dimensions, every trial team its own quirks and quiddities, and every jury its own dynamic – partially knowable at best and then only to the first-hand participants.
Which said, my admittedly limited sample suffices to put forward a recent outcome where the jury came out the other way, as a comparison with Trump’s decision not to testify.
On June 6 in San Francisco, a federal jury acquitted UK tech entrepreneur Mike Lynch of multiple counts of wire fraud and conspiracy, arising out of his role as chief executive of software company Autonomy. The charges were that under Lynch’s leadership, the company used backdated contracts, round-trip deals to entice customer purchases, and software revenues mis-allocated to unprofitable hardware sales. With its financial reporting so manipulated, it was claimed that American company Hewlett-Packard’s 2011 purchase of Autonomy for $ 11 billion, led by Silicon Valley veteran Meg Whitman, for which HP took a write-off one year later of $ 8.8 billion, involved an overpayment that exceeded $ 5 billion.
Lynch took the witness stand at his trial. As reported, his “calm and confident performance in his own defense on the witness stand appeared to have turned things in his favor.”
By contrast, in choosing not to testify, Trump is unique among American presidents. Whatever the course of his future appellate strategies, he is a convicted felon – a label hung on him by a jury of twelve ordinary citizens.
While the American notion of the Monday morning quarterback seems not to have a colloquial British equivalent, Lynch has a prominent public profile there, and his acquittal has been well covered in the UK media. Both the similarities and the differences invite comparison.
The two defendants brought to their trials a common reputation of domineering and autocratic executive styles. Both professed disinterest in the details under their watch, left to subordinates in favor of attention to their avowedly higher callings.
The readiness to evade responsibility for the conduct of their minions invoked what one of my early mentors, a former federal prosecutor, called the “pure heart and empty head” defense – asserted by CEOs who claim to be above attending to the granularity of quotidian particulars. In Trump’s case, responsibility fell to Allen Weisselberg, his longtime financial wheelman who for his complicity earned both a two-million-dollar severance payoff from the Trump Organization and a five-month sentence for his guilty plea to charges of tax and other frauds. For Lynch, it was his chief financial officer Sushoven Hussain, who had earlier been convicted and served a five-year prison sentence for his role in Autonomy’s malfeasance.
Both defendants brought to their trials the baggage of collateral litigation exposures. Arising out of his personal and business affairs, Trump faces adverse judgments in New York in the actions brought by E. Jean Carroll for defamation relating to what a New York jury found to be his sexual assault, and by the state’s attorney general for his organization’ corrupt manipulation of its real estate valuations; related to his tenure in office are the three pending but stalled cases - for conspiratorial vote-rigging in Georgia, purloining and concealment of confidential government records documents in Florida, and the January 6, 2001, insurrection in Washington.
Lynch’s situation is rather simpler - he confronts the damages phase of civil claims by HP in the London courts, seeking recovery for the debacle on the back-breaking if implausible scale of four billion pounds.
Commentators have suggested that the prosecutor’s case against Lynch was over-complicated and confusing for the jury. As a non-participant and therefore unqualified to opine, I note only that juries are fully capable of following even complex financial and accounting narratives – as shown not only by the Trump verdict but also by the November 2022 convictions of Elizabeth Holmes for financial fraud based on the fictitious blood-testing technology of Theranos, and Sam Bankman-Fried’s November 2023 conviction for the wild excesses of crypto exchange FTX.
A challenge for any defense counsel – assessing how a client defendant’s testimony may be perceived by a jury, for better or worse - is not just a hard call. Sooner or later as any litigation of consequential scale reaches its inflection point, whether criminal or civil, defense lawyers must make plain to their clients a highly simplified proposition – “You could lose this case.” It may happen on the eve of trial, as with the last-minute agreement by Fox News to settle the defamation claims of Dominion Voting Systems for $ 787 million. Or when a plea bargain is offered. Or when there is no further postponement of the binary decision whether to take the tactically risky but legally justifiable choice not to testify.
Mike Lynch may not have needed the lawyers’ speech. Trump, schooled by über-fixer Roy Cohn and pursuing for decades the tactics of “delay, deny and deflect,” may even now not have registered the reality.
Lynch may have dodged conviction by his act of courtroom salesmanship. Whereas if credence is given to Trump’s relentless self-promotion and unrestrained self-confidence, it would be fair to ask how he could resist the opportunity for a theatrical first-person courtroom display of his ability to market his own brand and his long-cultivated image of superior intellectual skills and behaviors both innocent and virtuous.
Would the outcome of either trial have been different, if their choices had gone the other way? One reason the inquiry and the comparison are so tantalizing is precisely that we cannot and will not ever know.
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