How Trump Screwed Up His Lawyers’ Ability to Do Their Jobs

Donald Trump’s antics are finally catching up with him.

That is, of course, true in the New York criminal trial as a whole, where Trump may be found guilty of past misconduct. But Trump’s antics are also catching up with him in a narrower, but quite meaningful way.

In the New York case, the prosecutors said Thursday that they would not be providing to Trump’s legal team the names of the first three witnesses that the prosecutors would be calling to testify. Trump’s lawyers objected. Judge Juan Merchan sided with the prosecution, saying that he couldn’t fault the prosecutors for refusing to identify the witnesses, given Trump's history of criticizing and potentially intimidating witnesses.

Trump Needs a Will Smith-Style Gag Order (Minus the Slap)

Trump’s lawyer, Todd Blanche, promised that Trump wouldn’t post anything about the witnesses. Judge Merchan rejected the offer: “I don’t think you can make that representation.”

At last, Trump’s paying a price for his antics.

To a non-lawyer, it may seem like it makes little difference whether the prosecutors reveal to the defense the names of upcoming witnesses. To a lawyer, this is important information.

Suppose prosecutors had told Todd Blanche the names of the first three witnesses who would testify for the prosecution on Monday and Tuesday. Blanche and his colleagues would spend the weekend sharpening their pencils (and, figuratively, their knives) for those witnesses.

The lawyers would scour the past record for anything helpful those people had said, any documents that could be used to criticize the witnesses, anything else that could be used to impeach the witnesses, and the like. The lawyers would think tactically about how best to phrase questions and how best to surprise witnesses with traps that the witnesses hadn't anticipated.

With the entire weekend—48 hours—to concentrate on just three names, Trump's team could probably do some real damage when the time came to cross-examine the witnesses on Monday or Tuesday.

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Suppose instead, as is the case, the prosecutors did not tell Trump’s legal team the names of the prosecutors’ first trial witnesses. Trump’s lawyers are now left to speculate about who might take the stand.

Will the first witness be Stormy Daniels? If so, Trump’s lawyers would plan one line of attack. Or will the first witness be Michael Cohen? If so, Trump’s lawyers would sharpen their pencils in an entirely different way.

Or will the first witness be Doug Daus, a computer forensics expert in the Manhattan District Attorney’s Office? The cross-examination of Daus would have nothing in common with the cross-examinations of Daniels or Cohen. Or perhaps the first witness will be Hope Hicks, Trump’s press secretary in 2016, or David Pecker, who runs the National Enquirer. Or a multitude of others.

Instead of having an entire 48 hours to concentrate on just three witnesses, Trump’s lawyers are now being forced to do scattershot preparation, searching the backgrounds and thinking strategically about how to question literally dozens of potential witnesses.

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It is not a good idea to restrict your lawyers’ ability to prepare for cross-examination at trial. The results of that time constraint will be apparent next week, when the cross-examinations conducted by Trump’s team will be less effective than they otherwise would have been.

The blame for this lies squarely, and exclusively, on Trump’s shoulders. He has used social media to criticize (and perhaps try to intimidate) witnesses in the past. It is Trump’s predilection for criticizing witnesses that led the prosecutors to withhold from Trump's team the names of the early testifying witnesses. That same predilection led the judge to agree that the prosecutors' choice was justified.

Though he long seemed immune—Trump’s actions, at last, do have consequences. For no reason other than he can’t help himself, Trump’s made it immensely harder for his legal team to help him.

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