"Trump testifying would likely be a gift": Legal experts say DA "has boxed Trump in" at trial

Prosecutors in New York plan to question former President Donald Trump about his recent spate of high-profile courtroom losses to challenge his credibility should he take the stand in his hush-money trial, a filing publicly released Wednesday indicates.

The list of the former president's misconduct, originally submitted to the court in March by Manhattan District Attorney Alvin Bragg, includes Trump's more than $460 million civil fraud judgment from earlier this year, gag order violations, verdicts from civil federal juries finding him liable for defaming and sexually abusing writer E. Jean Carroll, and sanctions for what a judge said was a "frivolous, bad faith lawsuit" against Hillary Clinton, according to CBS News. The lawsuit, dismissed in 2022, accused Clinton and others of plotting to hurt Trump's 2016 campaign by claiming he colluded with Russia's government.

"This does not surprise me at all in the sense that the prosecution wants to be able to bring in this kind of information," David Schultz, a Hamline University professor of legal studies and political science, told Salon, adding that "the prosecution has boxed Trump in in a really interesting way."

The district attorney's notice is for a Sandoval hearing, in which a judge determines the scope of what cross-examination of a defendant can entail and whether a defendant's "prior bad acts" can be raised should they choose to testify, CBS notes.

Under normal rules of evidence, raising a those acts is oftentimes "not admissible" in court, Schultz explained. But the defendant testifying does offer the prosecution more "leeway" in potentially bringing up a broader array of information in order to "question his credibility and truthfulness."

"Basically, if a defendant claims to be telling the truth, prosecutors want to be equipped to challenge that claim," added Temidayo Aganga-Williams, a Selendy Gay PLLC partner and former assistant U.S. attorney. Should Trump choose to testify and "assert he did not commit" the alleged crimes, prosecutors from Bragg's office should be able to "question him on his well-documented history of intentionally making false statements." 

The former president has pleaded not guilty to 34 felony counts of falsification of business records. He has denied all allegations in the case, which revolves around a hush-money payment made to adult film star Stormy Daniels near the end of his 2016 presidential campaign to keep her quiet about an affair she alleges they had.

The trial began on Monday and jury selection is underway. Presiding Judge Juan Merchan indicated Thursday that he intends to hold the hearing Friday, MSNBC legal correspondent Katie Phang reported.

In the newly released filing, Bragg indicated he plans to mention that the former president previously "testified untruthfully under oath" in his civil fraud case. He specifically noted that Trump claimed his public comments about Judge Arthur Engoron's clerk, which earned him a partial gag order in the case, were instead about a witness. Engoron determined that as "the trier of fact, I find [Trump's] testimony rings hollow and untrue."

Bragg also outlined his intention to raise that Engoron found Trump had "repeatedly and persistently falsified business records, conspired to falsify business records, issued fake financial statements, conspired to issue false financial statements and conspired to commit insurance fraud."

The presumptive Republican nominee has denied wrongdoing in the civil fraud suit and is appealing. He has also accused the attorneys and prosecutors in both cases of having political motivations in bringing the cases.

Trump's attorneys have signaled that they believe Bragg's proposed topics should be off-limits for prosecutors. Merchan, however, will make the final determination about which subjects are admissible.

"Judge Merchan is likely to permit questioning about acts that bear directly on Trump’s credibility and veracity but will keep out those that are likely to create undue prejudice, merely suggest that Trump has a propensity to commit crimes or include salacious details (such as sexual assault)," Aganga-Williams told Salon.

Schultz said that he thinks Merchan will allow prosecutors to mention cases that have judgments but believes the judge will "draw the line" at "other allegations that have not been adjudicated yet." He noted that if Merchan permitted the prosecution to raise "everything and the kitchen sink," Trump, if found guilty, could claim the judge "abused his discretion" in allowing "too much prejudicial information to come in" and appeal.

"When you bring this information in, it really does become a case within a case," former federal prosecutor Neama Rahmani told Salon. "All of a sudden we're talking about [E.] Jean Carroll again, we're talking about false business records to banks, Hillary Clinton. It can give rise to a lot of collateral issues, distract the jury and can be prejudicial."

But all of these considerations are "only relevant" if Trump decides to testify, he added.

Trump told reporters on March 25 that he "would have no problem testifying" at the trial, stating that his testimony "could also make me more popular because the people know it's a scam."

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Choosing not testify, however, cannot be held against him because the Fifth Amendment prohibits the jury from taking it into consideration. Even then, Schultz said, jurors "effectively" do it anyway.

"Juries want to hear from the defendant, and I think in this case, especially, they're going to want to hear from the ex-president of the United States," he said.

Should the former president take the stand, his defense attorneys have to concern themselves with his "hot temper" and ensure they control their client while being "very scrupulous" in imparting to Trump that he can't lie under oath, Schultz explained. Trump being caught lying would both "hurt" him with the jury and "make it possible" for prosecutors to request to bring even more information in to "further impeach" him.

Rahmani said he expects Trump will testify during the trial both because "this is as much political as it's legal" and because Trump previously testified in his civil fraud suit.

He speculated that the former president will either further deny the affair and "blame his accountants" for the false business records, or admit to an affair with Daniels and say he paid her so not to "embarrass his family." While Rahmani believes the latter outcome is "unlikely," he said it could reduce Trump's charges from felonies related to campaign finance violations to misdemeanors if true.

Aganga-Williams argued, however, that Trump taking the stand would be a "terrible decision that would put him on the road to a conviction" because of his "history of lying."

"Trump testifying would likely be a gift to the government," he said.