Going through the motions in a case where the judge has already made up his mind and the outcome is not in doubt.
I explained yesterday that there didn’t seem much point in Don Trump Jr.’s reappearance as a witness in New York attorney general Letitia James’s civil-fraud trial against the Trumps and their family real-estate business. To repeat:
Even if we indulged the fiction that [Judge Arthur] Engoron has not already made up his mind about the outcome, it would be difficult to see how Don Jr.’s testimony would help the defense much. He has already testified, during the state’s case, that the top executives in the Trump Organization relied heavily on the company’s then-accountants (the U.S. division of the Mazars Group) to complete the statements of financial condition (SFCs) that are the heart of the state’s case. It is in the SFCs that asset values were allegedly inflated during the period from 2011 through 2021. Whether or not you take Don Jr. at his word, his version of events is that he had little awareness of how the SFC values were arrived at. Given that, what more could he really add to the defense’s position at this point?
Sure enough, Don Jr.’s testimony was a three-and-a-half-hour dud. Understand: My point here is not to pat myself on the back for predicting that. Any first-year law student, assuming he or she were attending some classes rather than “From the River to the Sea” protests, could have predicted the pointlessness of this exercise. Nor am I intimating that Don Jr. is a bad witness. To the contrary, indications are that he was charming and even had a decent rapport with the judge, whose hostility to Trump père is unconcealed.
No, the point is that Engoron has already ruled that the defendants are guilty of persistent fraud under New York’s ridiculous no-proof-required business-fraud statute (§63(12)). He has already made up his mind about the case. That’s the end of the story because this is a non-jury trial at which Engoron will render the verdicts (finding the Trumps liable on most if not all of the remaining six causes of action — after having ruled against them pretrial on the first and most critical fraud cause of action).
Engoron, moreover, will also decide the penalties to be imposed, including “disgorgement,” James’s claim of entitlement to confiscate $250 million or more in Trump organization profits — despite the state’s inability to point to a single fraud victim. As I detailed toward the close of the state’s case last week, Engoron has endorsed James’s theory that the banks were cheated out of about $168 million in interest payments — based on utter speculation, including the absence of proof that banks, which do their own due diligence in assessing risk and valuing collateral assets, would have required higher interest payments if the Trumps had not (allegedly) overstated asset values.
Don Jr.’s testimony Monday was like a Trump organization brochure — a flashy depiction of the Trump properties (without the inconvenient details that some of them are no longer Trump properties, and that the ones that are have not been doing so well). The state objected to this, but Engoron — who, after his tawdry performance to this point, has an incentive to manufacture a record that he is fair and unbiased — waived off James’s minions, quipping, “Let him go ahead and talk about how great the Trump Organization is.”
The judge, of course, has already provided his own antithetical opinion of the Trump Organization in his pretrial summary judgment ruling. As far as the case is concerned, it’s his opinion that matters — and his opinion won’t change just because former president Trump’s eldest son spent a few hours waxing nostalgic about the family business and euphoric about his father’s real-estate “genius.”
Beyond that, Don Jr. merely reaffirmed that the top executives (he, his siblings, his father, and a few others) relied on their accountants to ensure the accuracy of the statements of financial condition that are the heart of James’s case. Since he’d already said that the last time he testified, and since the judge has already decided that this is not a defense to the fraud that he has already found, it is all a colossal waste of time.
Nevertheless, the Trump defense will continue banging its head into Judge Engoron’s wall. The former president is expected to testify again, perhaps next week. That may be a useful platform to advance his campaign theme that Democrats are abusing their powers to persecute him, but it cannot advance his legal defense. Not in this trial, where the outcome is a foregone conclusion.