Former President Donald Trump is adamant about taking the stand in his hush money trial playing out in Manhattan — but his lawyers are likely pressuring the businessman to stand down, experts have said, fearing that he might implicate himself and make matters worse amid his ongoing legal woes.
"I would testify, absolutely," Trump told reporters outside the New York County Criminal Court in mid-April, just as the infamous case was beginning. The hush money suit charges Trump with 34 felonies related to the falsification of his business records to hide reimbursement payments to his former lawyer and "fixer" turned nemesis Michael Cohen.
Trump and his campaign allegedly paid adult performer Stormy Daniels $130,000 to silence her claims that she and the real estate mogul had an affair in Nevada in 2006. She threatened to go public with the information in 2016 ahead of the election that ultimately saw Trump win the White House.
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He and his campaign feared her claims would harm his political aspirations, and so he allegedly had Cohen pay her off. The former lawyer testified last week against his former boss, telling jurors how he was ordered to make the payments and that Trump had authorised the falsification of business records to hide their illicit deal.
"I'm testifying. I tell the truth. I mean, all I can do is tell the truth. And the truth is that there is no case," the former president told reporters outside the courthouse last month. Just a week after that, NBC News reported that he reaffirmed those claims, telling reporters once again that he would be testifying.
Just two weeks after that, however, Trump began backtracking on his assertion, telling Newsmax that he would only testify "if necessary." In a later interview with Spectrum News 1 Wisconsin, he said he would "probably" take the stand, adding that he "would like to."
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The reason behind his change of heart? A misperception of his gag order that bars him from talking about witnesses and other individuals involved in his trial, save for Judge Juan Merchan and Manhattan District Attorney Alvin Bragg.
The caveat is that he can talk about them, but only on the witness stand — and Merchan emphasized to the former reality TV star that he does have an "absolute right" to testify at his trial, calling it a "fundamental right that cannot be infringed upon." He added that the decision is entirely Trump's based on consultation with his attorneys.
But his attorneys might not be too keen to see Trump take the stand, a couple of legal experts told NBC. "It's conventional wisdom among defence attorneys that there's a lot of risk to having your client testify, and the risks often outweigh the benefits," Duncan Levin, a criminal defence lawyer who previously served as a prosecutor in the Manhattan district attorney's office, told the publication.
That wisdom became almost tangible amid Trump's civil cases earlier in the year, including the civil fraud trial brought forth by New York Attorney General Letitia James that accused the former president of grossly inflating the net worth of his real estate holdings in order to secure better loans and business deals across the state and beyond.
In that case, he testified but was ultimately taken off the stand by Judge Arthur Engoron after he failed to stay on topic, launching into nasty political tirades that included attacks against the judge and others that related little to the matter at hand.
Almost the exact same thing happened in a defamation suit brought forth by columnist E. Jean Carroll, who accused the businessman of raping her in a department store in Manhattan in 1996 and then defaming her when she came forward with her allegations in the late 2010s.
Trump testified for just a few minutes in that case before he was taken off the stand — but not before he attacked Judge Lewis A. Kaplan, Carroll and everyone else involved with the case as he called both that one and the civil fraud suit "witch hunts" designed to by his Democratic opponents.
Between the two cases, the presumptive Republican nominee for the presidency was ordered to pay a collective total of nearly $550 million, with the defamation suit costing him $83.3 million on top of the $5 million he was ordered to pay a couple of years ago when he was found guilty of sexual assault against Carroll and the civil fraud suit costing him $454 million. In the latter, he was able to pay $175 million, money he secured from a bond, to avoid asset seizure.
While Trump's testimonies were only singular factors that led to him being found liable in both cases, they were factors nonetheless, experts said. It boiled down to Trump's unpredictability, Levin told NBC as he said, "Nobody knows what he's going to do, including his own lawyers."
He called Trump "an uncontrollable client who has a constitutional right to testify" as he added in a conversation with The Telegraph that Trump would be "nearly impossible to prepare for testimony."
It's not officially known whether Trump's attorneys advised him not to take the stand or not, as much of that information falls under attorney-client privilege, but Levin believes they likely did. But because of the high-profile nature of the hush money case and the public's vested interest in hearing both sides, he said "traditional rules could be thrown out the window."
Arthur Aidala, a lawyer who once represented Harvey Weinstein, told NBC News that he tends to have his "best success" when his clients don't testify. But, he said, echoing sentiments from Levin, "Human instinct is people want to hear both sides. They want to see [Trump] take the stand and see what he can say."
It is possible, Levin said, that Trump's testimony could help his case, as he could spin his defence in such a way that it removes him from much of the liability attached to the hush money payments. The catch, however, is that Trump will be forced to admit in the end that he did, in fact, sign reimbursement checks to Cohen, meaning that testifying is almost a surefire way for Trump to incriminate himself — something he has a constitutional right not to do.
He could claim that his hands were too full managing the day-to-day affairs of the presidency, Levin said, as the payments were authorised after he was already sworn in, but he emphasised that the catch lies in the fact that Trump had to personally sign the checks, regardless of whether or not he was a part of the decision-making process or planning surrounding the hush money payments. Ultimately, Levin said, he had knowledge of it, at least to some degree.
Trump pleaded not guilty and denied any wrongdoing in the case, as he has done in all of the cases he faces, including three other criminal trials that involve the illegal storage of classified documents at his Mar-a-Lago estate in Florida, his alleged incitement of a deadly riot at the Capitol on Jan. 6, 2021, and election interference related to that, and an alleged illicit scheme to overturn the results of the 2020 election in Georgia, a battleground state that ultimately awarded Joe Biden the presidency.