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.
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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 least 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.
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 point. She testified that he put his hands up her skirt and grabbed her vagina—and that she ended the assault by returning to her originally assigned seat in coach.
Carroll’s attorneys then introduced video of Anderson Cooper questioning Trump in the 2016 Debate about the Access Hollywood “grab them by the pussy” recording. During that debate, Trump denied that he had ever actually grabbed a woman without consent in her vagina. Leeds testified that it made her “furious” to hear that, because he had done precisely that to her.
In a final twist of the knife, Leeds testified about one final encounter with Trump, at a benefit gala in 1981, which he attended with his first wife, Ivana, who was pregnant at the time. Leeds testified that when she walked up to the couple, Donald Trump turned to her and said, “I remember you, you're that cunt from the airplane.” Leeds testified that she was stunned by the response, and immediately left the event.
Once again, the cross-examination did little to shake the damning testimony. Leeds admitted that she did not know Trump before he attacked her on the flight, but that she was absolutely certain that the man who attacked her was Donald Trump.
At the end of the day, Carroll’s attorneys informed the Court they expected to conclude their case by Thursday morning. Trump’s attorneys then revealed that Trump would not be testifying. Judge Kaplan stated that he would instruct the jury and have closing arguments either on Friday, May 5, or Monday, May 8.
In the end, this trial may be like “the sound of one hand clapping.” E. Jean Carroll will have testified to being raped by Donald Trump. She will have presented numerous corroborating witnesses. Donald Trump will have presented no evidence on his own behalf, instead relying on the jurors to not believe the testimony of the plaintiff and her witnesses.
Only those jurors know what their verdict will be.
