Dems’ Anti-Trump Lawfare Pays Compounding Interest

The Democrats’ lawfare campaign against the putative 2024 Republican presidential nominee is paying compound interest. This is illustrated by pretrial rulings in Manhattan DA Alvin Bragg’s criminal prosecution of Donald Trump.

With the help of an elected progressive Democratic judge, Arthur Engoron, New York attorney general Letitia James managed to get Trump held civilly liable for persistent fraud — to the tune of $454 million (plus continually compounding interest), notwithstanding the absence of fraud victims.

That was a remarkable coup for Democrats. It put Trump in significant financial peril: He has had to post $175 million to stave off enforcement of the judgment while he appeals. No, that’s not the half billion dollars or more that James was seeking to have the appellate court order, but it’s a gargantuan amount of money. It makes it harder for Trump to do business — and James’s objective is to put him out of business, which will effectively happen if she prevails on appeal.

Now, however, we’re seeing that this gift for Democrats keeps on giving.

At the criminal trial that started in earnest today with opening statements, Judge Juan Merchan ruled that if Trump takes the stand in his own defense, Bragg’s prosecutors may use against him Judge Engoron’s finding that Trump committed persistent fraud over many years.

Now, there are many reasons to question Engoron’s findings — we’ve covered them here, and they will be the focus of Trump’s appeal. Still, that is not going to be apparent to the jury in the criminal case. Trump would be given some leeway to dispute Engoron’s finding, but Merchan is not going to allow the civil fraud case to be completely relitigated in the criminal trial. In the end, whatever Trump says by way of explanation, the criminal jury is going to be informed that a New York state judge found that Trump engaged in a persistent pattern of fraudulent conduct.

Then there is the E. Jean Carroll case, which resulted in two trials. As we’ve expansively covered, a Manhattan federal jury in the initial trial, in which Trump foolishly elected not to participate, found him liable for sexual abuse and defamation, and ordered him to pay $5 million in damages. Trump then decided to participate in the second trial, but Judge Lewis Kaplan stifled his defense by ruling that the issues of sexual abuse and defamation had already been decided by the first jury. That led to a massive damages award on the two remaining defamation claims — $83.3 million.

Trump is appealing that one, too, and he’s got some significant arguments. But as with the above-described state civil fraud case, it may be a year or more before the appeal is decided. In the interim, the jury’s judgment stands.

Judge Merchan has already ruled that Bragg may not introduce evidence of alleged sexual misconduct by Trump beyond (a) the two alleged extramarital affairs that resulted in nondisclosure agreements (NDAs) that are the heart of Bragg’s case, and (b) a redacted transcript of the infamous Access Hollywood tape, in which Trump is recorded bragging about being sexually aggressive — evidence that is said to be relevant because the damage it did to Trump’s campaign heightened his incentive to pay for the NDA that bought Stormy Daniels’s silence.

Consistent with that ruling, Judge Merchan decided today that, if Trump testifies, prosecutors may not elicit the jury finding that the former president sexually assaulted Carroll some 30 years ago. Nevertheless, the state will be able to impeach Trump’s credibility by referring to the jury’s finding that he defamed Carroll by lying about her.

Trump can shield the state criminal jury from learning of the federal jury’s defamation finding and Judge Engoron’s persistent fraud finding, but only if he opts not to testify. Again, if he does testify, prosecutors will be able to challenge his candor by highlighting these matters.

It is no secret that I don’t think much of Bragg’s case (see, e.g., here and here). Normally, I would counsel that when the prosecution’s case is weak, a criminal defendant should rely on that weakness and refrain from testifying or mounting much of a defense. In a criminal case, the prosecution alone bears the burden of proof, so a defendant needn’t prove anything — he can just argue that the state has failed to prove the case beyond a reasonable doubt. And unlike in a civil case, the jurors in a criminal case will be instructed that, if a defendant does not testify, they may not draw a negative inference against him. On the other hand, if a defendant testifies and presents a case, and that goes poorly, it can have the ironic effect of shoring up a weak prosecution case. The likelihood of conviction increases markedly.

But as I said, that’s in a normal case. This is a Trump case. Trump is such a brash, larger-than-life figure that the jury may expect him to testify and could — subliminally or otherwise — hold it against him if he elects not to take the stand. Also, Trump is in a political campaign and knows that if he relies on his Fifth Amendment right against self-incrimination, his Democratic and media critics will portray that decision as an admission of guilt.

Moreover, Trump has said publicly, repeatedly, that he wants to testify in the trial. Obviously, a competent cross-examiner might bruise him badly; but it’s also possible that Trump could do himself a lot of good — he can be charming and forceful, and his status as a former (and perhaps future) president could make him tough for the prosecutor and trial judge to rein in.

Thanks to the lawfare campaign, though, Trump has some hard thinking to do that he may not have fully anticipated when the New York civil fraud trial and E. Jean Carroll trials were ongoing. The findings of fraud and dishonesty in those cases could be very damaging to him in the eyes of the criminal jury in the ongoing Manhattan case. Now, the only way he can keep the jury from hearing about those findings is to forfeit his right to testify in his own defense.

Eventually, if Trump wins his appeals, the findings against him in the civil fraud and Carroll cases could be vacated. For now, however, they are very real — and thus an obstacle Trump will have to confront.