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Three Trumps down, one to go: Prosecutors are expected to end their case after Ivanka testifies [1]

['Daily Kos Staff']

Date: 2023-11-07

The last two weeks have seen a high level of drama within the New York courthouse of Judge Arthur Engoron. Donald Trump Jr., Eric Trump, and Donald Trump have all appeared to testify in a fraud case that could mark the end of the Trump Organization and result in massive fines.

But this phase of the trial is coming to a swift conclusion. After Ivanka Trump sits down to give her testimony on Wednesday, prosecutors are expected to rest their case in the civil fraud trial against Donald Trump, his sons, and the company.

With that, the trial will move on to testimony from defense witnesses. Expectations are now that testimony will wrap up and everyone will be waiting on Engoron’s decision around Dec. 15. The defense case is unlikely to see a return to the stand by Trump or his sons. That doesn’t mean it’s not going to feature some significant and contentious testimony.

However, what comes after the state’s case ends and before the defense begins could be even more important.

Ivanka Trump will testify on Wednesday, but she isn’t facing any personal stake in the trial that could cost her father and brothers millions in fines. That’s not because she did nothing wrong; it’s because of a technicality. In June, a state appeals court dismissed the case against Ivanka because New York District Attorney Letitia James missed a deadline in filing the case against her. That same court also left it up to Engoron to determine if some of the claims against Donald Trump, Donald Trump Jr., and Eric Trump were too old.

Since that ruling, Ivanka has fought efforts to force her to testify in the case. Most recently, that included a claim that appearing during “a school week” would represent an “undue hardship.” Engoron did not agree, and barring last-minute changes, Trump’s eldest daughter will take the stand to answer questions at 10 AM Eastern on Wednesday. Whether she’ll be more or less honest in her answers without the threat of personal repercussions remains to be seen.

There are unlikely to be any witnesses in the defense phase of the trial to match the high profile of the Trump family. However, based on statements that Donald Trump and others made on the stand, it’s possible to guess at some of the upcoming appearances.

Expect Trump’s team to produce current or former bankers who will testify that statements of financial condition, like the ones that Trump falsified, don’t play a large role in securing loans. Also, expect some “expert” testimony designed to make Trump’s method of assessment, in which he values undeveloped property as if it were developed to its maximum potential, seem more acceptable.

Lead defense attorney Chris Kise has also dropped some hints that could indicate the defense intends to call witnesses who will testify to prejudice on the part of Engoron, state prosecutors, or James. Kise may also attempt to call witnesses to introduce evidence that Engoron has so far not allowed in the trial.

However, the most interesting act may come before the defense case begins.

Following Ivanka's testimony, Trump’s defense team is expected to file several motions. Some of these may be requests to strike specific testimony. There will certainly be one or more motions to dismiss the whole case, as well as motions to dismiss those portions of the case connected with actions outside the regular statute of limitations. Trump’s testimony on Monday included several statements that are likely to form the basis of such a motion by claiming Trump always had plenty of cash on hand, his “brand” represents a massive value that wasn’t reflected in documents, and he has unique expertise in valuing his properties.

Following last week’s testimony from Eric Trump and again following the Monday appearance by Donald Trump, Kise has indicated he intends to file a motion for a mistrial. Kise may hold that motion for the end of the defense testimony, but there’s a fair chance he will make that move this week.

Engoron has given Trump’s team little reason for such a motion. Throughout the trial, Engoron has been incredibly indulgent of meandering statements in court and tolerant of attacks outside court. The only time Engoron has shown a flash of anger during the trial is when Trump and his legal team have tried to insinuate a conspiracy involving Engoron’s legal clerk. Engoron was forced to place a gag order on Trump, then fined him twice after Trump continued to make statements that generated threats against the clerk. That gag order was extended to Trump’s attorneys last week after Kise and attorney Alina Habba joined in attacks on the clerk.

The reason Kise will very likely file for a mistrial is simple: Trump has lost this case. Engoron has already determined that fraud occurred. The testimony from Donald Trump Jr., Eric Trump, and Donald Trump served only to confirm the state’s case, and everything suggests that Engoron is going to deliver a large fine and other punishments. James has requested a $250 million fine and restrictions that would prevent any of the Trump Organization trustees from doing further business in the state of New York. That’s little short of a death penalty for the Trump Organization, and a huge blow to Trump.

Mistrials are not all that uncommon. About 10% of jury trials end in a mistrial. However, they are much rarer in the case of a bench trial, like the one underway in New York. That’s because the biggest cause of mistrials is a hung jury. Other mistrials can come because of issues with jury selection. Or because of juror misconduct. None of that applies in this case.

Most other mistrials are due to procedural violations. For example, the introduction of evidence not disclosed to the defense. Or introducing evidence that the judge had already ruled could not be used. That has also not happened in this case.

For a judge to grant a mistrial in a bench trial is extremely rare. Most of those cases still involve the introduction of evidence or the violation of an order by the judge, and the general rule is that a mistrial motion should be made immediately following the action that is the potential cause.

In this trial, the only thing that would seem to fit this would be the objections that Kise and Habba have made to notes being passed to Engoron by his clerk—an action that is in no way unusual. However, Trump’s legal team has claimed that the clerk’s actions are “improper” and cited articles from Breitbart claiming she made contributions to Democratic causes. Kise gave his first warning of a potential motion for a mistrial following an argument on Thursday in which Trump’s team interrupted testimony by Eric Trump to complain about the clerk.

Engoron has openly urged Kise not to file a motion for mistrial. Before testimony on Monday, the judge told Trump’s attorneys that he would not respond positively to such a motion.

Trump could appeal, but this kind of appeal is also extremely rare. Usually, defendants are restricted to appealing the outcome of a trial, not rulings on individual motions within the trial. If Trump does appeal, the motion for mistrial could end up with the same appeals court that is still studying a suit against Engoron that Trump’s legal team filed in September.

That Kise is talking about this is a reflection of just how little chance Trump has to escape this trial without a massive blow to his finances. For Trump, taking a chance on an extremely rare outcome is better than taking no chance at all.

While the last week may have included the most high-profile testimony, the case against the Trump Organization and its trustees has been underway for some time. New York Attorney General Letitia James first disclosed her investigation to the court in August 2020. Trump’s frequently changing legal team filed multiple motions to delay or dismiss the case, and along the way, Trump paid a $110,000 fine for contempt. Finally, on Sept. 26, 2023, Engoron ruled that Trump had inflated the value of his company’s holdings by as much as $2.2 billion and that the company and its trustees were guilty of fraud. On Oct. 2, the state began presenting witnesses in the trial to determine specific violations and punishment.

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