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Donald Trump Has a Jury Problem

In court, Kaplan disciplined Trump as if he were a toddler.
Photo: Jane Rosenberg/REUTERS

One of the first and most important lessons I learned as a prosecutor was this: The jury is just 12 regular people (New Yorkers in my case), they’re judging every move you make, and they’re sitting right there. And the jury is, of course, everything.

That’s why Donald Trump’s behavior during the recent E. Jean Carroll defamation trial was so astonishing. Even if Trump doesn’t give a damn about courtroom decorum for its own sake, his conduct was self-sabotage and resulted in a jaw-dropping civil verdict. He’d better get an in-court attitude adjustment quickly — or at least fake one — or else the consequences will be far worse.

We newbie prosecutors were drilled relentlessly on how to act in the well of the courtroom. A smattering of examples, in ascending order of importance: I once got scolded by a trial supervisor for wearing laceless slip-on dress shoes in front of a jury. (He was undoubtedly correct, tactically and sartorially.) Another trial veteran told me never to take a drink of anything except, if I were literally choking, a small dixie cup of tap water; we wouldn’t want to slug down frosty Snapples while the jurors had no such delights. I learned that if I insisted on doodling during tedious witnesses (and I did), I should at least make it look as though I was listening and taking careful notes. Even if something goes haywire — a judge makes a lousy ruling or a key witness collapses on the stand — keep that poker face and act like everything’s cool. When the jury comes out to deliver its decision, don’t stare at them, and no reaction either way (neither fist-pumping nor head-hanging) when the verdict is announced.

In a jury-trial setting, everything is being judged, and everything matters.

Yet Trump had a series of outright temper tantrums in front of the Carroll jury. He muttered so loudly — “witch hunt,” “con job,” and other golden oldies — that the judge (who sits farther away from the parties than the jury does) could hear it and threatened to remove Trump from the courtroom. During his bizarre, truncated testimony, Trump added extraneous comments, which the judge promptly struck from the record. And the coup de grace: Trump stomped out of the courtroom, in full meltdown mode, as Carroll’s attorney delivered her closing argument.

Here’s a simple case study to assess the self-inflicted damage. Trump skipped out entirely on the first Carroll trial — an unambiguous sign of disrespect — and that jury found him liable for $4.7 million in compensatory damages (meant to pay back the plaintiff’s financial loss) plus $300,000 in punitive damages (meant to punish especially outrageous behavior by the defendant). Trump then showed up (and acted out) for the second trial. The result there: $83 million, including over $65 million in punitive damages. In other words, the second jury was about 200 times more offended by Trump’s conduct than the first jury was at his complete no-show. (This isn’t a precise mathematical science, of course, but there’s a lesson here.)

There was, perhaps, a smidge of method to Trump’s madness. Ever seen a baseball game where the home team is losing, say, 14-2 in the eighth inning? The manager realizes the game is lost but figures Hell with it, I’m gonna go blow off some steam. The manager comes out, turns his hat backward, spits in the umpire’s face, kicks some dirt around, and gets tossed out. It doesn’t help his team win — if anything, it probably seals their fate — but at least it gives the hometown loyalists a momentary jolt of defiant, eff-you adrenaline.

That said, Trump picked the wrong guy to mess with in Judge Lewis Kaplan. Take my word for it; I tried a mob case in front of him (two Gambinos were shaking down a Manhattan strip joint, you’ll be shocked to learn) and appeared before him more times than I can count. A little insider secret here: Not every judge is great at controlling his or her courtroom, even at the federal level. But Judge Kaplan takes zero crap, and he rules absolutely. It doesn’t matter who you are — DOJ hotshot, former president, big-money defense lawyer — Kaplan owns that space. (He can also cut you down in a manner that’s brutal but entertaining; he once said to me, with a not-unkind half-smile, “Mr. Honig, you’ve already climbed out on a branch you need not have climbed out on — and now you’re in the process of sawing it out from under yourself.”)

During the Carroll trial, we saw Kaplan discipline Trump as if he were a toddler — which is to say, effectively. The judge established clear limits, warned Trump when he stepped out of line, and then enforced discipline swiftly when he went too far. More than once, Judge Kaplan all but sentenced Trump to a time-out. Judges in the other Trump cases should take note.

Somebody had better straighten Trump out before his criminal trials start, or else he’ll face bigger problems than a whopper civil judgment. The jury deck is already stacked against him in D.C., Manhattan, and Fulton County, where he faces impending criminal trials; he received 5.4 percent, 12.3 percent, and 26.1 percent of the vote in those localities, respectively, in 2020. He’s going to have minimal cushion from those juries even in the best circumstances. He can’t afford to act like a clown in front of them and expect a favorable verdict.

I don’t envy the lawyer who draws the task of enforcing discipline on Trump. He has done everything his way for nearly eight decades, and it’s made him rich and resulted in his presidency. He shows no signs of mellowing now; if anything, Trump’s rage and defiance have intensified with time. Lawyers sometimes talk about clients who are difficult to manage. Trump needs a new category all his own.

Maybe it would be best to phrase it to him as a pure matter of self-interest: “Look, Mr. President. You just got whacked with a couple massive civil verdicts. I know you think those cases were unfair, and let’s say they were. It sucks, but you’ll be okay; you can cut the checks, maybe sell a property or two. You’ll be fine. But these criminal cases are, to paraphrase Jon Hamm’s character from The Town, not-fucking-around time. If you lose one of these trials, you might go to prison. Real, actual prison. Yeah, you’ll have your appeals, and who knows what other potential offramps, but still: prison. So let’s pull it together. Even if you have to pretend to show respect, do it for your own good. Your future is at stake.”

Think he’d listen? I don’t either.

Listen to this article. And for more analysis of law and politics with Elie Honig, Preet Bharara, and other contributors, sign up for the free CAFE newsletter or become a member of CAFE Insider.


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