Cross-Examining Donald Trump

 

Trump is currently in trial in the Trump civil fraud trial. He was called to the stand by the Attorney General’s office in the civil fraud trial. In a criminal trial, the government cannot call the defendant to testify because the defendant has a 5th Amendment right. In this civil case, however, the government could and did call the defendant Trump to testify, and defendant Trump could have  exercised his 5th Amendment right. However, in the civil case, the factfinder (in this bench trial, Judge Engoron) could draw an adverse inference if defendant Trump were to take the 5th. For example, if Trump refused to answer a question posing that he inflated the price of a piece of real estate, the judge could infer that he did inflate the price.

Why did the AG call Trump as a witness? It was because Trump had to admit facts supporting the government’s case, such as heading his business and ownership of his real estate, and so on. 

That brings us to the question—why didn’t the defense cross-examine Trump? First off, this is not the usual cross-examination. The usual cross involves counsel examining the other side's witness, using cross to elicit concessions and/or impeach the witness. 

Here, however, defense counsel is questioning the defendant, and ordinarily, the defense attorney would ask the defendant open-ended questions allowing the defendant to lay out information favorable to the defense case. This assumes that the defendant would benefit the defense case with the helpful testimony. Also, this assumes that the defendant is a normal person and a person who has at least a scintilla of information that would benefit the defense.

In this case, however, the defense, when defense counsel was offered the opportunity to examine Trump and gather beneficial evidence, defense counsel responded, “No questions.” Normally, defense counsel says “No questions” when the witness has not hurt the defense case and cannot benefit by asking any questions. 

Here, on the other hand, the defense risked that defendant Trump would further build the government’s case. Watch this interview with former US Attorney Chuck Rosenberg.