Donald Trump lost the bulk of his bank fraud trial before it ever started, and his lawyers have resorted to preposterous legal maneuvering that has scholars and former judges baffled.
Last week, the former president’s defense lawyers asked the judge for a “directed verdict,” essentially an outright victory that kills the case. In the legal world, it’s a longshot request that almost never works.
But there’s a reason Trump’s effort for a directed verdict was even less likely to work—it was the third time his lawyers asked for it during the trial, setting what some reckon is a new record in New York State.
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“Three times is excessive. I think they're just taking a shot in the dark here. It just sounds like a ‘Hail Mary’ pass,” said Carolyn E. Demarest, a retired state judge who said she couldn’t remember a single instance where she granted such a request in her nearly 35 years on the bench.
The New York Attorney General’s Trump trial, which seeks to punish him for lying about his wealth on official documents for years, has been going on since the start of October. It’s nearly over, with only days to go. But in that time, the billionaire’s legal team has stunned Justice Arthur F. Engoron in court by repeatedly asking him to toss out the entire case.
At times, the verbal requests have elicited muted laughter in the courtroom—an odd scene for an unprecedented trial involving a former president accused of lying to banks. But at this point, it’s his lawyers who seem to be making history.
“It would be very, very rare to direct a verdict before the evidence is complete. At the end of the entire case, you might ask for a directed verdict, because you’d say, ‘They didn’t prove it.’ In very rare circumstances, it’s possible the case wasn’t proved. But that would be one request for a directed verdict,” Demarest said.
The tertiary toss of this aimless ball happened last Tuesday, Nov. 28. Trump’s lead defense lawyer, Christopher Kise, surprised the judge with the request after testimony from one of their witnesses, the “private wealth management” banker David Cosby Williams. The Deutsche Bank employee explained that the bank did indeed conduct its own internal review before lending Trump millions of dollars—something that Kise used to make an intellectual leap, asserting that Trump’s lies couldn’t have mattered.
“I am just going to renew, based on the testimony we just heard today, renew our motion for directed verdict. The evidence before the defense began was clear… the government had not introduced enough evidence of intent, materiality, reliance or damages for disgorgement with this witness. And I don’t know how many more witnesses we need to call to confirm this,” he said.
“This witness has again testified the bank conducted its own due diligence,” Kise added. “They didn’t say there was any issue between what the bank viewed and the client reported numbers… the bank made decisions based on its own analysis.”
When the judge asked for input from the AG team, senior enforcement counsel Kevin Wallace responded with a degree of disbelief. After all, this is the same argument that failed before trial.
“No. This is not—I don’t know what the point of this motion is,” Wallace said. “The witness did not say that none of this matters. The witness said that, actually, they expect their clients to tell them the truth and not lie and not submit fraudulent statements. The idea that this witness somehow exonerates defense…”
Engoron, at wits’ end, chucked the matter aside.
“I am not prepared to give a whole speech on this. I would just basically point out that, the mere fact that the lenders were happy doesn’t mean that the statute wasn’t violated,” he said.
The AG’s case is a civil matter; Trump faces hefty monetary damages, not prison time. But another former state judge, Alan David Marrus, likened the situation to what would happen at a criminal trial if a defense lawyer asked the charges to be dismissed. It’s an extraordinary request that attempts what many consider impossible: a knockout victory.
“It’s not anything that’s unethical or improper. It’s letting the judge know their client wants one,” he said.
But the fact that Trump’s legal team keeps pestering the judge to call off the trial halfway through hints at what’s likely going on behind the scenes.
“They serve at the pleasure of Mr. Trump. When push comes to shove, if the client says, ‘I want you to do this,’ they can be relieved,” Marrus said. “I don’t think anything President Trump does embarrasses him. The lawyers are an extension of his client. The only thing embarrassing is if they have to appear before this judge again, and they probably won’t.”
Marrus noted that the multiple longshot requests make even less sense when you consider that the judge concluded—before trial—that Trump and several members of his inner circle committed bank fraud.
The trial went forward so that the AG’s investigators could try proving that the Trumps and top executives also faked documents and committed insurance fraud, allowing the judge to figure out how badly they should be punished.
“It’s a show trial. He’s already found the guy liable,” Marrus said. “That a trial like this would take so long is really the shocking thing. This is petty stuff that they’re asking for a directed verdict.”
And that’s what turns this hopeless legal play into full-blown comedy. Directed verdicts, however improbable, are meant to be an impassioned plea to a jury or judge with an open mind. Engoron has already concluded Trump broke the law when he lied to banks. So, how can he possibly now conclude the opposite?
“A directed verdict motion says this: There’s not enough evidence here for the case to go to a jury. The only wrinkle here is, there's no jury! They’re asking the judge to direct a verdict against himself,” Pace University law professor Randolph M. McLaughlin said, laughing.
“I’ve never heard of a lawyer asking on multiple occasions for a directed verdict. I’ve never heard of it,” he added. “I understand you have to make motions, but some of what they’re doing borders on frivolousness. I don’t think they have any shame at all.”
As for actual repercussions, judges tend to give lawyers quite a bit of leeway for them to vociferously advocate on behalf of their client. It would be awkward and unfair for them to punish lawyers simply for putting forward a specious argument. But like all things related to Trump, his bank fraud trial has pushed the bounds of judicial norms and shown the limits of this practice.
Engoron has spent nine weeks castigating Trump’s lawyers for wasting the court’s time. They’ve incessantly made the same objections despite being overruled every time. And they’ve stretched out witness testimony by breaking up what could have been a single overarching question into dozens of repetitive ones.
However, Trump’s defense lawyers have gone even beyond that, making snide remarks about the judge and launching personal attacks against Allison Greenfield, the law clerk who advises him on juridical matters and always sits by his side behind the bench. When Trump maligned Greenfield on social media and got muzzled by the judge, his legal team picked up the baton in the courtroom. In order to stop them, Engoron weeks ago resorted to slapping them with a gag order too—a remarkable move rarely seen in the legal world.
But even that is more common than a directed verdict hat trick.
“A lawyer’s credibility is important to preserve,” former judge Demarest noted. “And if you do things that are just absurd and unwarranted, you get a reputation for behaving that way. And your credibility is undermined.”
