The Problems for Trump’s Legal Team Just Got Way Worse

On Monday, Donald Trump testified before Judge Arthur Engoron in his civil fraud trial, contrary to my expectation and basic common sense. That testimony, which ended with the defense attorneys declining to offer any cross-examination, went even worse for him than even I imagined. Indeed, his appearance contained all of the disastrous predictions of many courtroom veterans, including admissions of misdeeds, false statements, and testimony inconsistent with that given by his sons. As I anticipated, “the only beneficiaries of Trump’s testimony will be the state of New York” and perhaps federal prosecutors.

Two main theories have been articulated in the media to explain this legal self-immolation. The first goes that Trump has given up on the legal battle and is using the trial simply to raise campaign money and echo his blatantly false claims of being a victim. The second is that he is simply making a record for an appeal.

I will leave the first theory to others to explore, but the latter explanation is absurd. Instead of creating a helpful appellate record, Trump has instead made the record of his culpability stronger. Even more consequentially, anyone who thinks that an appellate judge will embrace a litigant who has attacked the legal system, the presiding judge, and that judge’s law clerk has no understanding of the real world. Judges are human beings and will view the Trump attacks against Engoron as an attack against them personally.

More important than Trump’s motives is another aspect of the Trump saga underlined in today’s proceedings: a mounting concern about the role of Trump’s lawyers in the ongoing lunacy. Having spent more than four decades in the courtroom, first as a federal prosecutor in New York, then as a white-collar criminal defense attorney who defended criminal cases all over the country, I know about the role of criminal defense attorneys. Far too many of Trump’s lawyers have already debased themselves and the profession in their representation of Donald J. Trump, and Monday was no exception.

During one of the breaks in the day’s proceedings, Trump counsel Alina Habba held a press conference in which she made a series of false, bombastic claims about fraud in our political system and the importance of Trump’s 2024 candidacy. What does this have to do with Trump’s fraud case and what kind of lawyer would do that?

A graduate of an obscure law school that is among the lowest ranked in the country, Habba, who possesses no meaningful career credentials, has been a front-line Trump lawyer for some time now. Her first widely publicized representation of the former president came in a Florida lawsuit she filed on his behalf against a host of political foes including Hillary Clinton. The lawsuit was quickly dismissed by the judge as one that “never should have been brought” and was filed “in bad faith.” The court fined both Habba and Trump almost $1 million. So, it’s fair to say we should not have expected much from Habba.

But what about co-counsel Christopher Kise, an attorney with real experience and bona fide credentials? What was Kise thinking when he criticized Engoron’s law clerk? What outcome does he imagine will come out of claiming that the regular communications between the judge and his clerk during the proceedings have created a “perception of bias”? That clerk in question, of course, was the subject of Trump’s withering attacks, actions that led Engoron to issue a protective order preventing attorneys and defendants from targeting court personnel. Trump violated that order multiple times and was subsequently fined, but why is Kise getting in on the action?

There are two realities that must be noted in this regard. First, it is the job of a law clerk to assist the judge in whatever is needed to perform his or her role. Their relationship and communications are key to that role. Second, an attack on one is an attack on the other. Very often, a personal bond is created between the judge and law clerk—for the former, out of appreciation for the hard work and devotion provided by the clerk; for the latter, for the experience and professional credentials they’ve gained working for the judge. Trust me. I’ve been there.

Surely, Kise is aware of these realities, and could not have been surprised by the resulting additional gag order issued by the judge last week. Yet he felt it necessary to lash out improperly anyway.

All of this demonstrates that Trump doesn’t negatively affect just those “out-there” ideological attorneys who will do his bidding at great personal cost to themselves, such as Habba or Christina Bobb, a right-wing media personality turned Trump attorney, or those who go so far as to subject themselves to criminal charges for Trump, like Jenna Ellis, Rudy Giuliani, and Michael Cohen. Trump’s brutal personality necessarily influences lawyers who should know better, like Kise and his co-counsel in the D.C. election interference case, John Lauro and Todd Blanche, both well-respected former federal prosecutors in New York.

All three have the near-impossible task of confronting overwhelming evidence against their client in the most important and highly publicized cases in American history. At the same time, they must deal with and answer to their client’s ignorance, baseless belief in his own judgment, interpersonal brutality, and inability to control himself or accept reality. They must also endure the venom surely being hurled at them in person or online by a segment of the population that loathes their client and ignorantly criticizes them for doing what their profession and our criminal justice system require.

As I recalled in a prior Slate piece, my former New York law partner Ken Kaplan and I had a favorite saying during the decades we worked together: “You can often protect your client against the government, but you can never protect him against himself.”

For Kise, Lauro, and Blanche, another aspect of the same insight applies—you have to not only protect the client against the government but protect yourself against the client. No pressure.