At the end of proceedings Tuesday, Donald Trump’s attorney informed the Court that the former President will not be testifying in his own defense.
In a trial that has been going quite badly for Trump, he is not going to bother making a last-ditch effort to win over the jury by testifying that he did not rape E. Jean Carroll and then facing cross-examination. In essence, his defense now rests on his attorneys’ cross-examination of E. Jean Carroll, which was abysmal.
Even though Trump’s decision not to testify makes it much more likely that the jury will rule against him, I believe that he and his lawyers are making the wise decision. The former president is currently under indictment in New York for 37 counts of false statements. He also faces an open investigation in Fulton County, Georgia, where District Attorney Fani Willis has announced that she will disclose whether she plans to indict Trump by early summer.
Special Counsel Jack Smith is likewise deciding whether to seek an indictment of Trump for hoarding the classified documents discovered in his office and residence at Mar-A-Lago and/or for his role in the Jan. 6 insurrection.
It’s important to note that any statement Trump would make on the witness stand during this trial could be used in any of those cases as well.
In addition, Trump faces the theoretical possibility of criminal indictment for the rape of E. Jean Carroll. In New York, there is no statute of limitations for the crime of first degree rape. If he were to take the stand and melt down (like Jack Nicholson in A Few Good Men), he could be indicted by Manhattan DA Alvin Bragg. So, while choosing not to testify is a bad option, it’s likely the best bad option available to the former President right now.
Prior to the decision, Tuesday’s events brought even more bad news for Trump. New York Times best-selling author Lisa Birnbaum took the stand and testified that E. Jean Carroll told her Trump had raped her in a dressing room in the lingerie department of a Bergdorf Goodman store, the same day that it occurred. Birnbaum’s testimony was permitted as an exception to the hearsay rule, because it was offered to rebut Trump’s assertion that Carroll only recently came up with the “fabrication” that she had been raped by Trump.
Trump Lawyer Joe Tacopina’s Terrible Cross-Examination Gets Even Worse
Birnbaum’s testimony was detailed and unequivocal. She testified that Carroll told her about the rape in graphic terms, which caused Birnbaum to leave the room where she was feeding her children dinner. Birnbaum testified Carroll told her Trump had followed her into a dressing room at Bergdorf’s, slammed her against a wall, pulled down her tights, and then penetrated her with his “penis.” Birnbaum testified that she did not want to continue the conversation in front of her children (who were then 3 and 6 years old), so she took the phone into another room for about five minutes. When she returned, she reheated the chicken nuggets that she had given her kids for dinner. In my experience, the detail about the chicken nuggets is the sort of distinct memory that makes jurors believe a witness is providing an authentic memory.
The cross-examination of Birnbaum did not move her story, at all. During her direct questioning, Birnbaum admitted that she “loathed” Donald Trump. The cross-examination merely brought out additional examples of Birnbaum expressing her hatred for Trump, such as comparing him to “herpes”, calling him “demented” and a “Russian agent.” On re-direct, Birnbaum testified that she was told of Trump raping Carroll long before he was a political figure, and that she would not lie to stop Trump from being President.
Carroll also presented Jessica Leeds, who testified that she was sexually assaulted by Trump during a flight in 1979 or 1980, as she sat next to him in first class. “It was like he had forty zillion hands,” she said at one…
Read More: Trump Makes at Least One Good Decision at His Rape Trial