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Shannon Stapleton

Four-times-indicted former president <a href="https://www.washingtonpost.com/donald-trump/" target="_blank" class="contextual_link">Donald Trump</a> began his <a href="https://www.washingtonpost.com/national-security/2024/01/14/trump-trials-tracker-latest-news/" target=_blank>third significant civil trial this week</a>. None of these trials has required guilt beyond a reasonable doubt; none covers the alleged coup or purloined secret documents. But they tell us plenty about his legal strategy as his criminal trials draw closer.

Underway is E. Jean Carroll’s second trial, in which she claims Trump defamed her in 2019 when he was president. Trump already lost one defamation case brought by Carroll, wherein the jury found by a preponderance of evidence that he essentially <a href="https://www.reuters.com/legal/trump-cannot-challenge-writers-rape-claim-defamation-trial-judge-rules-2024-01-08/" target=_blank>raped and defamed her</a>. <a href="https://www.washingtonpost.com/politics/2023/07/19/trump-carroll-judge-rape/" target=_blank>The Post reported</a> that the judge ruled: “The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape.’ Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.”(Trump denies he raped Carroll.)

Meanwhile, the massive civil trial in New York concerning his purportedly inflated valuation of properties has gone to the judge for a decision on counts not previously decided and to determine damages. Trump could be forced to <a href="https://www.washingtonpost.com/nation/2024/01/05/trump-fraud-trial-new-york-james/" target=_blank>pay as much as $370 million</a>, lose the ability to do business in New York and face liquidation of some of his holdings.

We know he views courtrooms as campaign appearances where appeals are made for their political value, not legal strength. Trump would rather be in courtrooms than on the campaign trail. In the run-up to the Iowa caucuses, he was in a Manhattan courtroom for closing arguments in the New York civil case. He was not required to be there. But he makes more headway with Republican voters by appearing as an aggrieved defendant than by staging and attending campaign events. He also saves money, conserves energy and makes the media come to him when he protests his innocence in the courtroom or on the courthouse steps.

Though Trump does not necessarily want to lose, he does not maximize his chances of winning. Legal experts <a href="https://www.thedailybeast.com/trumps-new-york-civil-trial-is-only-one-aspect-of-his-massive-fraud" target=_blank>Norman Eisen, Joshua Kolb and Andrew Warren</a>, for example, pointed out at the Daily Beast that he did not make cogent arguments, let alone the best ones, in the New York fraudulent evaluation case. “Looming over the arguments made by both parties was what could have actually been Trump’s best argument against the intent to defraud: that any mistakes were accidental,” the authors noted.

Why spend time arguing irrelevant points or rearguing rulings the judge already made (e.g., the disclaimer on the evaluations doesn’t absolve him of fraud)? “The undisciplined and unhinged defenses Trump propounded today reflect the approach he has taken in the criminal cases,” they suggested. “Given the weakness of his legal position, it looks like Trump is aiming his arguments not at the court but at a different audience: the public. But that won’t be successful, in either the civil case or the criminal prosecutions.” A defendant who cared about winning a bench trial would not defy the judge’s orders and launch into a stream of unfounded accusations. Trump wants his base’s sympathy more than a reduced damage award or a verdict that goes his way on the remaining counts. (He might think he’ll prevail on appeal.)

Probably because it was before he began campaigning, Trump chose not to show up at the first <a href="https://www.reuters.com/world/us/closing-arguments-set-rape-defamation-suit-against-trump-2023-05-08/" target="_blank">Carroll case</a>, which allowed her lawyers to tell the jury he couldn’t look her in the eye because “he did it.” In the trial on Wednesday, <a href="https://www.nytimes.com/2024/01/17/nyregion/judge-kaplan-trump-e-jean-carroll-trial.html" target="_blank">Trump had to be admonished</a> for muttering comments like “con job” and “witch hunt” within earshot of the jury. This conduct is was not a winning strategy for Trump. But it was a way of telling his supporters how little he thinks of Carroll (and, by extension, other accusers). It’s more important for him to convey contempt for his enemies than to drag himself into court to try to sway a jury. Satisfying his own emotional needs and playing to his cult appear to supersede legal considerations.

Trump eagerly creates chaos, looks for opportunities to disrupt and continues to threaten judges, court personnel and witnesses. Indeed, in advance of the current trial, Carroll’s lawyer implored the judge to consider <a href="https://www.washingtonpost.com/politics/2024/01/11/trump-insults-civil-fraud-trial-new-york/" target=_blank>his outburst in the New York civil case</a> and take steps to prevent another attempt to “<a href="https://abcnews.go.com/US/judge-clears-trump-testify-defamation-trial-starts-tuesday/story?id=106386324#:~:text=%22If%20Mr.%20Trump%20appears%20at,no%20relation%20to%20the%20judge." target=_blank>sow chaos</a>.” Trump is prohibited from rearguing the facts of the sexual assault — although he might try anyway. Expect outbursts in his criminal trials, ludicrous arguments (even those the judge already ruled on) and other stunts that a normal defendant might fear would be off-putting to a jury. That has always been his style: delegitimize entities and defy the rules because he seems to consider himself above the law.

Finally, Trump’s main tactic is delay. A <a href="https://www.justsecurity.org/91253/the-e-jean-carroll-i-case-explaining-trumps-second-civil-defamation-trial/" target="_blank">Just Security</a> backgrounder pointed out: “Trump has repeatedly sought to delay the Carroll I case, but has been <a href="https://www.cnn.com/2024/01/02/politics/appeals-court-denies-trumps-effort-delay-carroll-civil-trial/index.html" target="_blank">rejected</a> at least twice by the U.S. Court of Appeals for the Second Circuit, and as <a href="https://storage.courtlistener.com/recap/gov.uscourts.nysd.543790/gov.uscourts.nysd.543790.266.0_2.pdf" target="_blank">recently as Sunday</a> by Judge Kaplan.” (He tried to plead that he needed a postponement because his mother-in-law died, but that didn’t stop him from attending campaign events.) “Trump has also sought to have the Carroll I case dismissed on presidential immunity grounds, but that claim was rejected by both Judge Kaplan and the Second Circuit.” The delays and incessant appeals on baseless theories (recall his plea for the Supreme Court not to expedite a review on the immunity issue in the <a href="https://www.washingtonpost.com/january-6-capitol-riot/" target="_blank" class="contextual_link">Jan. 6</a> case) will continue every step of the way.

When you boil it all down, you get a sense of how Trump treats the legal system (as he does the political system). It’s an illegitimate infringement on his right to do whatever he wants (absolute immunity). It’s a stage for victimhood appeals. It’s “proof” the “system” is out to get him.

Whether he cannot bring himself to do the things needed to win (keep his mouth shut) or whether he understands at some level that he has no legitimate defenses, he simply wants to push his days of reckoning into the future, after an election he thinks he can win and use to keep verdicts at bay. Judges in the upcoming criminal cases had better be prepared for more of the same.

University of California at Berkeley, BA in history

University of California at Berkeley, JD

Jennifer Rubin writes reported opinion for The Washington Post. She is the author of “Resistance: How Women Saved Democracy from Donald Trump” and is host of the podcast Jen Rubin's "Green Room."

Jennifer Rubin

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Trump’s civil trials reveal what he is up to

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