‘Trial within a trial’: Trump’s strategy on verge of imploding

<span>Photograph: Getty Images</span>
Photograph: Getty Images

In a scene that could have been pulled from a Hollywood courtroom thriller, Donald Trump was called to the witness box last week and accused of threatening a clerk of the court.

The former president had already been fined for attacking the judge’s clerk. Now he had done it again and the usually jocular Judge Arthur Engoron angrily threatened to lock Trump up. “Why should there not be severe sanctions for this blatant, dangerous disobeyal of a clear court order?” asked Engoron.

Trump escaped with a $10,000 fine – this time – but it was a moment that ripped back the curtain on the dueling trials that have been taking place in a Manhattan courtroom over the last four weeks. The first of a series of trials Trump faces in the coming months and one that will probably set the pattern for the messy, high-stakes trials ahead.

The official trial, for which Engoron is the judge, is focused on whether Trump knowingly inflated the value of his properties to boost his net worth. Engoron has already ruled that the Trump Organization cooked the books – a ruling that could end Trump’s New York business empire. The court case is about what punishment Trump his adult sons and other Trump executives should face. This is a civil case, Trump will not go to jail no matter what the judge rules. Nor is there a jury to impress. Engoron is making the final decision based on the court hearings.

The second – unofficial – trial is being fought in the court of public opinion. The media circus arrives every time Trump appears in court he attacks the “witch-hunt”. His lawyers cry foul, shout at witnesses and demand the case is thrown out. The facts of the case seem almost incidental. For Trump and his lawyers, it is clear – often to the anger of the judge – that the official trial is less important to them than the political one.

“A lot of him thinks that the trials are how he’s going to win re-election,” said Julian Zelizer, a professor of history and public affairs at Princeton and author of The Presidency of Donald J Trump: A First Historical Assessment. “He is going to be there and show himself under attack again and again to make the point that he’s an anti-establishment figure wherever they get him.”

Judge Arthur Engoron and Donald Trump as seen in a courtroom sketch from 25 October.
Judge Arthur Engoron and Donald Trump as seen in a courtroom sketch from 25 October. Photograph: Jane Rosenberg/Reuters

But even for someone as media savvy as Trump, juggling the trials is proving difficult and may point to real problems ahead. Treading the fine line between the judicial and political dynamics demands restraint, a quality Trump has never displayed. If he goes too far, the consequences could be serious.

After the trial’s first day in early October, Trump posted on social media, mocking a picture of Engoron’s law clerk with the Senate majority leader, Chuck Schumer, calling her Schumer’s “girlfriend”.

Trashing his opponents and setting his huge fan base on them is a tactic Trump has used for years. But in a court, the stakes are higher. Engoron has the power to throw Trump in jail for violating a gag order barring him from speaking about court staff publicly. Engoron, who often cracks jokes from the bench, struck a serious tone when discussing Trump’s gag order violation. The judge has repeatedly said that he is “protective” of his staff, particularly in an “overheated” political climate.

“I don’t want anyone to be killed,” Engoron said on Wednesday as Trump sat with his lawyers, letting a long pause settle in the courtroom.

It was no surprise that this dramatic moment took place during Michael Cohen’s week in court. Once master and loyal servant, Trump and Cohen are now bitter foes. The appearance of Trump’s former lawyer generated massive publicity for the trial – which has been through a dry, technical patch recently. But it also – once again – highlighted the very different battles playing out in Manhattan’s supreme court.

For the actual fraud case, Cohen’s testimony was simple: He testified that Trump had wanted him to mark up the values of his assets on financial statements to increase the value of his net worth. Cohen has said this repeatedly since he turned on his former boss and his congressional testimony in 2019 inspired the case the New York attorney general, Letitia James, brought against the Trump Organization and that Engoron is now overseeing. But the actual substance of Cohen’s dramatic appearance is unlikely to decide how the judge rules.

For the political trial, Cohen’s testimony was far more important. Trump’s lawyers used it as an opportunity to wax poetic about how Cohen had once admired the president, making Cohen admit he read Trump’s bestseller The Art of the Deal twice while in college and that he, at one point, said he would take a bullet for Trump. That Cohen eventually turned on Trump proves that he is a serial liar who can’t be trusted on the stand, they argued.

“The attorney general is trying to cover for an extraordinary witness who has no credibility on the stand,” Trump lawyer Christopher Kise said during back-and-forth between lawyers and the judge. Trump’s lawyers called Cohen a bitter perjurer who was now living off his connection to Trump. Cohen was such a flawed witness that the case should be dismissed, they argued.

For all their shouting, Engoron emphasized that he did not even consider Cohen a “key witness”. After weeks of poring through documents and interviews with lawyers and accountants, Engoron said: “There’s enough evidence from this case to fill this courtroom.”

Trump watches as his lawyer Alina Habba cross-examines Michael Cohen before Engoron on 25 October, as seen in a courtroom sketch.
Trump watches as his lawyer Alina Habba cross-examines Michael Cohen before Engoron on 25 October, as seen in a courtroom sketch. Photograph: Jane Rosenberg/Reuters

Prosecutors from the attorney general’s office neatly described what was going on after Trump’s lawyers once again attacked Cohen’s testimony. This was “a trial within a trial within a trial” they said – and one that is unlikely to sway the judgment.

For Trump, that doesn’t seem to matter. He’s playing by the strategy that got him to the White House: maximum outrage and publicity to fire up his base as a money-raising marketing tool.

How long Trump’s strategy can last will be tested over the next year, and not only because the presidential election is next November. Trump has five other court cases on his heels, including some that are based on criminal charges that could lead to prison time if he is convicted.

Lawyers for those cases are watching this case closely as they weigh their tactics for the fights ahead. Susan Hoffinger, who is leading the Manhattan district attorney office’s case against Trump over hush money payments to adult film star Stormy Daniels, was in the courtroom during Cohen’s two days of testimony. So was her opponent, Trump’s attorney Todd Blanche.

“In many ways, I think this [case] is the least of his worries, although it’s going to put him out of business,” said Gregory Germain, a law professor at Syracuse University. “If this had been the case against Joe Blow, there would be no press there, there would be no people taking down this stuff. There would be no attacks on the court clerks and the judge. So that’s just the Hollywood nature of this crazy trial.”