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Trump's New York fraud trial has been punctuated by bizarre eruptions from him and his lawyers.
His other big trial earlier this year — believe it or not — was a model of decorum.
Without a jury, there's little to stop the fraud trial from getting more unruly.
A courtroom is normally a solemn place. At the front of the room is a judge who — as everyone knows — has the power to make or break your case. If you get out of line, they can throw you in jail. If there's any levity in the proceedings, it usually takes the form of a joke about statutory interpretation.
The ongoing Manhattan civil fraud trial against the Trump Organization, however, is anything but, well, civil.
A distinct spirit of kookiness permeates the proceedings. Every few weeks, Donald Trump himself shows up for a couple of days. During each break, he takes the opportunity to stand outside the courtroom and give meandering speeches to the media about how the system is rigged against him. His kids crack jokes with the judge on the witness stand and make sexually charged comments to a courtroom artist in between testifying that they don't remember anything about the family company. Trump's lawyers complain to New York Supreme Court Justice Arthur Engoron that their gag order prevents them from complaining more. Michael Cohen's testimony carried the tone of an ancient Greek drama. A court employee was arrested for trying to talk to the former president, claiming she wanted to "help" him.
For the Trump family, the stakes of the trial are grave. New York Attorney General Letitia James has accused them of falsifying financial records to obtain favorable loan terms and tax breaks. Engoron has already issued a ruling effectively dissolving the Trump Organization (that decision has been held up as an appellate court reviews it). Through the trial, James seeks to convince Engoron to issue an order disgorging the company of at least $250 million in allegedly ill-gotten gains and banning the defendants — Donald Trump, Eric Trump, and Donald Trump, Jr., along with inner-circle members Allen Weisselberg and Jeff McConney — from ever operating a business in the state of New York ever again.
Like any fraud case, the trial veers between thuddingly dull (lots of spreadsheets) and utterly absorbing (the ex-CFO just decided to triple the size of Trump's triplex?) But the most blaring bombshells have come from the drama between Engoron and everyone else.
With no jury, Trump is the audience
The trial is a bench trial, meaning there's no jury. Engoron, the judge, decides the facts as well as the law.
Normally, bench trials have less showmanship than jury trials. In jury trials, defense lawyers may try to win juror votes by appealing to their sympathies, spinning the facts, or deliberately confusing them.
Trump has whined about not having a jury in the case. And though cases brought under the particular statute the attorney general's office used, New York Executive Law 63(12), are typically bench trials, Trump's legal team failed to file paperwork asking for a jury trial. That would have forced Engoron to at least consider it and would have also allowed Trump to appeal a decision denying it.
"I think that was a mistake on their behalf," Jamie White, an experienced civil and criminal litigator, told Business Insider. "I think they had a better chance at hanging one of the jurors who maybe would be confused on some of the issues."
In a bench trial, a defense lawyer has a different audience: a sober-minded judge who's been presiding over countless pretrial motions and filings, sometimes for years, and who knows the case as well as anyone. It's up to the defense lawyer to present a set of facts that show the case against their client is all wrong.
Trump has inverted those norms. There's no audience of jurors, but there remains an audience of Trump.
"There's certainly nothing wrong with being a zealous advocate, and there's certainly nothing wrong with disagreeing with the court and making a record of that," White said. "But I think casual observers and legal experts both in part believe that this is for a one-man audience."
Engoron appears aware of this dynamic. "Are you talking to me, or the press, or your audience?" he quipped to one of Trump's lawyers, Christopher Kise, who had objected to one of his rulings about how to structure several questions.
When Trump himself took the witness stand and pontificated about how wonderful his company is, Engoron rested his cheek in his palms, looking irritated before striking parts of the ex-president's monologue. Trump pushed further still, insulting James and Engoron during his under-oath testimony.
Can you control your client?" Engoron asked Kise. "This is not a political rally. This is a courtroom."
"Your honor, you're in charge of the courtroom," Kise responded.
Trump's sermons in the hallway outside the courtroom, and on social media, are even more extreme.
He's called Engoron a "rogue judge" and misrepresented his rulings. He has called James, who is Black, a "racist" and attacked her for focusing on his company instead of the state's crime (in New York, the attorney general's office does not oversee criminal cases). He's reposted calls for them to both be arrested. Without evidence, he has alleged the US Justice Department orchestrated the lawsuit to interfere with his presidential campaign. If a jury was present, there's no way those comments would be allowed within earshot.
"Anyone with half a brain and a pulse understands the importance of the sanctity of our justice system, the respect for judges, and the decorum in the courtroom," Randy Zelin, a defense attorney and professor at Cornell Law School, told Business Insider. "Nobody in their right mind would behave like this. Someone going into court to argue a parking ticket knows how to behave in a courtroom."
Engoron is used to the dynamic. Before the attorney general's office filed the lawsuit last year, he presided over battles over enforcing its subpoenas. Trump's team was represented by Alina Habba, who has since been sanctioned in a separate lawsuit, in those proceedings.
Habba often handled her court appearances like she was on Fox News. In one hearing last year, she demanded an investigation into Hillary Clinton. Engoron's principal clerk, Allison Greenfield, told her to "stop speaking" as she interrupted the judge.
Instead of staying cool, Judge Engoron rolls up his sleeves
The destabilizing effects of these forces — Trump, Trump's mutinous lawyers, a judge who's willing to talk back — are multiplied by the courtroom itself.
The trial is taking place in a ceremonial courtroom, normally used for swearing-in ceremonies and staff parties. Greenfield, Engoron's principal law clerk, sits three feet to his right on the bench because the courtroom doesn't have a separate desk for her — an arrangement that has inspired some of the complaints about her frequent chats with the judge. The courtroom vibes are decidedly off.
Engoron, who carries the vibe of someone who will be glad to tell you about Woodstock in '69, doesn't seem too upset with the attention. He allowed pool photographers to take photos of the defendants sitting at the defense table, watching keenly as they work. Sometimes, they turn to him on the bench, and he flashes a grin for history.
Compare the atmosphere to another civil trial Trump faced earlier this year, in federal court.
In the spring, Trump lost a case against E. Jean Carroll, where a jury found him liable for $5 million for sexually abusing Carroll and defaming her when he lied about it. That trial, held around the corner from his fraud case, in Manhattan federal court, included some of the same lawyers defending him now.
Trump — who would not have the benefit of cameras in the hallways as he does in the state-level court — never showed up, even as he complained about the trial on social media, risking sanctions against him.
US District Judge Lewis Kaplan, who presided over the Carroll case, ran a tight ship with Trump's lawyers. He did not give them much room to derail the proceedings. After Trump's lawyers made a series of arguments asking to bring in evidence related to who was funding Carroll's lawsuit, Kaplan said it was "irrelevant" to the merits of the case. "I may at some point write in more detail, but I don't promise to do so," he said. "That's the ruling. The subject is closed." At another point in the trial, after Kaplan called a Trump lawyer's question to Carroll on the witness stand "inappropriate," he turned his voice to a growl.
"We are going to move on," Kaplan told Trump's lawyer. "In this courtroom, the ruling is the ruling, not the start of an argument."
In Engoron's courtroom, the ruling is often the start of an argument. Trump's lawyers have hemmed and hawed about Greenfield, Engoron's principal law clerk, who has donated to Democratic politicians. Engoron eventually issued a gag orders that covered not only Trump, but his lawyers as well. They have taken issue with his rulings pointing out that, under the law, it doesn't matter if banks got their money back from loans given to Trump if Trump still obtained those loans fraudulently.
Engoron has seldom told Trump's lawyers to simply "move on," even though the trial is scheduled to stretch over three grueling months. He japes along with the lawyers, trying to maintain the friendly atmosphere of what he calls a "love fest." He has sometimes circled back to arguments made earlier in the day, to ask more questions and explain his rulings more fully.
His explanations, in part, explain his thinking in the court record for when Trump's lawyers ultimately appeal his rulings. But they also serve the purpose — however pointless — in giving legitimacy to a trial that Trump's fans are already primed to hate.
"This judge, and I think like any judge with a pulse, has to be concerned about not only the appellate record, but the court of public opinion," Zelin said. "No matter what Judge Engoron does, he's going to be lambasted."
Trump has positioned the fraud trial into a familiar framework: That the deep state of government bureaucrats are in cahoots with Democratic politicians to take him down. If he wins the trial, he'll take it. If he loses, it was because it was rigged all along.
"If he's going to lose, he might as well behave as badly as he possibly can. Because what does it matter?" Zelin said. "Because when he does lose, he just turns around and says, 'See? I told you so.'"
Engoron may have allowed Trump some leeway with this kind of rhetoric because — as Kise mentions almost every day of the trial — he's the frontrunner for the 2024 Republican presidential nomination.
"Trump is uncontrollable, and he does have a legitimate claim to some degree that his speech is protected, but there are limits," White said. "And in my opinion, he's caught those limits."
Read the original article on Business Insider