Donald Trump is set to testify in E. Jean Carroll's defamation trial against him.
The only thing he can do is repent, experts say. But he's more likely to give a campaign speech.
The judge can kick him off the witness stand, a shaming that could inspire a massive jury verdict.
The first time E. Jean Carroll took Donald Trump to court, he didn't even show up.
Trump didn't attend a single day of his trial in Manhattan federal court last year. The jury ultimately agreed with Carroll's allegations — that Trump sexually abused and defamed her — and told him to pay $5 million in damages.
Less than a year later, Trump is standing trial again for defaming Carroll.
Because a jury already found him liable in last year's trial, this one is only focused on defamation damages for two statements Trump made in 2019. Carroll's lawyers also asked for more punitive damages over Trump's continued insulting of Carroll and insisting she lied when she said he raped her.
This time, the former president appears to be itching for a fight.
He has attended all but one day of the trial thus far, often whispering in his lawyers' ears. In statements outside court, he has continued disparaging Carroll — something the jury will almost certainly consider as it weighs how much to impose in punitive damages.
Last week, Trump told the judge he "would love it" if he was kicked out of the courtroom for being disruptive. On Monday, his attorney Alina Habba said he intended to take the witness stand in his defense.
Experts told Business Insider that Trump's two driving impulses — to fight the system and to take the witness stand — would create the judicial equivalent of a car wreck.
"It's like throwing gas on a raging fire at this point for him to testify," John Jones, a former federal judge in Pennsylvania, said.
Jilting the judge and jury so he could play to his fans would be a massive gamble, Jones said.
"Sure, you could play to your base and use these things as campaign rallies and appearances," Jones said. "But the fact of the matter is, it could generate a massive verdict against him."
The judge has given Trump little room to maneuver
In numerous pretrial hearings, US District Judge Lewis Kaplan, who has overseen both cases, has sharply limited the scope of Carroll's second trial.
Under a legal doctrine called collateral estoppel — essentially, that the earlier jury verdict has a binding effect on the related lawsuit — Trump and his attorneys aren't allowed to deny that he raped and defamed Carroll.
Because those issues have been resolved, Trump also can't reopen them by talking about related issues, including the left-leaning billionaire who funded part of Carroll's suit (the judge ruled it had no effect on her credibility), the lack of DNA evidence (Trump refused to provide his DNA for testing for years), or some of Carroll's media interviews (the jury in the first trial already considered them).
And while a defamation expert who testified for Carroll's team found that it would take $12 million to repair her reputation, Trump's lawyers failed to supply their own expert witness until shortly before the trial. The judge barred the expert from testifying, ruling Trump's legal team waited way too long and there wasn't sufficient time for vetting. Aside from Trump himself, the only witness his attorneys have said they may call in his defense is Carol Martin, a longtime friend of Carroll's who corroborated her version of events in the first trial.
"I don't know what he could possibly say. He's in a box," Jones, who now serves as the president of Dickinson College, told BI. "He appears to have been continually potentially defaming her during the trial."
Trump testifying would be a nightmare scenario for any lawyer, particularly given his open hostility to the judge. Habba has already had difficulty following the rules of civil procedure in Kaplan's courtroom. His taking the witness stand won't make things easier.
"He's a maniac. He's buzzing in her ear while she's trying to listen to the judge," Jones said. "At the same time, he sees any kind of cooperation by her with the judge quite clearly as traitorous as not having the right fire to satisfy him."
Habba — who was already sanctioned in a federal court in Florida for filing a lawsuit on Trump's behalf based on a conspiracy theory — may go down with the ship.
"She has this Faustian pact. She's going to work for him, and she's going to do his bidding," Jones said. "And if he wants her to be an anarchist and be unprofessional in court, then that's what she has to be."
Jones said that if Trump did take the stand, his only move would be to "invoke the mercy rule" and show contrition, hoping that the jury wouldn't award too much in damages.
Given Trump's behavior so far, asking Carroll for forgiveness would be extremely unlikely.
Chris Mattei, an attorney who won a $1.5 billion jury verdict against Alex Jones on behalf of the family members of Sandy Hook shooting victims, told BI there was no point in Trump testifying unless he was "just trying to create a circus."
"There is no halfway competent lawyer who would recommend to Donald Trump that he should testify in this case unless he was going to apologize and say that he had committed himself to never doing it again," Mattei said. "We know that's not going to happen."
How much rope will Trump get?
Before Trump takes the witness stand, Kaplan will almost certainly remind him of the limits of what he's permitted to testify about and get his assurance that he won't cross those boundaries.
If Kaplan isn't satisfied that Trump will abide by his rulings, he could preclude him from testifying, Jones said. Alternatively, Trump could get on the witness stand and "try to testify in a narrative fashion," Jones said.
"He'll take a question and just run with it and do what he does, which is stream of consciousness, and go off on tangents and so forth to a degree that there'll be objections or the judge will stop him in his testimony," Jones said. "And I think this is so fraught, it could happen virtually with every answer."
That's basically what happened late last year when Trump testified in his civil fraud trial brought by the New York Attorney General's office. Even though New York Supreme Court Justice Arthur Engoron had set parameters about what Trump could testify about, Trump trampled through those limits anyway. He went on lengthy soliloquies about the beauty of Mar-a-Lago's architecture, mused on the unknowable nature of brand value, offered polemics criticizing the judge, and complained about the US Justice Department for its criminal cases against him.
An exasperated Engoron begged Trump's lawyers to control him but largely allowed him to offer his monologues. The judge ruled that parts of the testimony were "stricken," meaning he wouldn't consider them evidence while deciding his rulings.
But Trump's fraud trial had no jury (Engoron is expected to issue a written ruling next month from the bench). Carroll's trial does have a jury, making it harder to "unring that bell" of forbidden testimony, Jones said.
There is also the question of what Carroll's lawyers want. Will they try to rein Trump in? Or wager that he'll inflict wounds on himself by taking the witness stand?
"This is the one area where Ms. Carroll's lawyers may conclude that the more rope you give Trump, the more he's going to hang himself," Mattei said.
The judge could kick Trump off the witness stand
In a situation where Trump breaks Kaplan's rules, the judge could decide that he's forfeited his right to testify and tell him to step down from the witness stand, Jones said.
Trump, who's running to retake the presidency in the 2024 election, may calculate that picking a fight with the judge could benefit his campaign. If the judge punishes him for violating his rulings, Trump could use it as an excuse to complain that he's being unfairly persecuted.
"If he gets carried out on his shield because he got ejected from the courtroom by Kaplan, then he'll go and boast that the system is rigged," Jones said.
While that might reinforce support among his Republican base, it'd probably look terrible for the jury, Mattei said. Carroll's attorneys, in their opening statement, asked the jury to impose big enough punitive damages that would "make him stop" defaming her.
"Maybe he wants that confrontation, but it is not something that is going to endear him to the jury in any way," Mattei said. "The jury is likely to see Trump's refusal to comply with the court's orders — and if he's allowed to say it, his continued insistence that he didn't assault Ms. Carroll and didn't defame her — as basically additional reason why he needs to be punished."
Kaplan could hold Trump in contempt and fine him or even theoretically put him in jail. But the experts that BI interviewed agreed that was an unlikely scenario.
More likely, they said, the jury watching Trump embarrass himself would be punishment enough. Jones said that if the jury saw Trump as trying to browbeat the judge, they'd probably side with the judge.
"The judge sees that they're seated in the box, gives them breaks during the day, dismisses them at the end of the day, talks to them, thanks them for their work," Jones said. "So when they see a lawyer trampling the judge or a litigant trampling the judge, they don't like it."
Jones pointed to Rudy Giuliani's trial last month over defaming two Georgia election workers who he falsely said rigged the 2020 election results. The workers' attorneys asked for a little more than $40 million in compensatory damages. But Giuliani continued to falsely accuse them of election rigging even while he was on trial.
While Trump is a billionaire, it's not clear whether he's liquid enough to handle a massive jury verdict.
And while judges have the authority to deem verdicts disproportionate and lower them, there's no reason to think he'll do so in Trump's case.
"It'd have to be awfully high for him to disturb it," Jones said.
A massive verdict doesn't, however, mean Trump will be deterred from continuing to call Carroll a liar.
Forbes has estimated Trump's wealth at $2.6 billion.
"I don't think he'll be deterred one iota by a large verdict," Jones said.
Read the original article on Business Insider