If Trump Is Boxed In by Jack Smith, Would He Roll the Dice and Testify at His Own Trial?

Special Counsel Jack Smith’s motion to limit the evidence President Trump can present to a jury could, if successful, increase the likelihood that the 45th president takes the stand in his own defense. Mr. Trump is already acting as his own lawyer on Truth Social. On Wednesday, he noted that a “deranged” Mr. Smith is “ignoring the Law and clear instructions from the D.C. Court that this ‘case’ should be stayed, and there cannot be any more filings.” That is broadly correct, as the criminal case for attempting to overturn the results of the 2020 election is suspended by Judge Tanya Chutkan pending appeal on the question of Mr. Trump’s immunities. Mr. Smith, though, anxious for speed, has insisted on meeting the deadlines adumbrated before the case was paused.One of Mr. Trump’s attorneys, John Lauro, writes to Judge Chutkan that his team “will not accept or review the present production, or any additional productions, until and unless the Court lifts the Stay Order. If the prosecution continues to violate the Stay Order, we will seek appropriate relief.” Mr. Trump also notes that the “Supreme Court just unanimously rejected” Mr. Smith’s “flailing attempt to rush this Witch Hunt.” While the justices did rebuff the special counsel’s “extraordinary” request for an expedited hearing on the immunity issue, there is no indication that it was unanimous, or that it was not — the order was unsigned, with no comment. If Mr. Smith persuades Judge Chutkan to grant his sweeping motion, whole avenues of a key defense strategy will be closed to Mr. Trump. He would not be permitted to argue that the case against him is politically motivated or that the riot at the Capitol on January 6, 2021, was the fault of the District of Columbia’s Democratic leadership, or the Capitol Police. Nor would he be able to press the case that his contestation of the election results was motivated by concern over foreign interference.Mr. Smith asserts that all of these lines of argument are “irrelevant” to Mr. Trump’s guilt or innocence and comprise “evidence or argument that serves only to support a jury nullification argument.” What, though, if they came not from documents or evidence, but under oath, on the witness stand, from the mouth of the 45th president?Mr. Trump taking the stand would be a dramatic development, but not unprecedented — he testified at his civil fraud trial once before declining to do so a second time, and sat for long hours of deposition with New York’s attorney general, Letitia James. It could be a way to press the nullification possibility even if Judge Chutkan erects barriers around what the jury can know.Mr. Trump was subpoenaed by the Democrat-controlled January 6 congressional committee, a summons to which he did not respond. Lawmakers can refer such acts of contempt to the Department of Justice for prosecution. That did not occur, though, as the 2022 midterm elections brought Republicans to power in the House of Representatives. The Fifth Amendment right against self-incrimination applies to civil and criminal cases. As a witness, Mr. Trump would still be subject to the strictures imposed by Judge Chutkan, and Mr. Smith’s team is likely to strenuously object to any effort by Mr. Trump to veer into subjects or impressions that she has ruled out of bounds. His improvisatory style, which can be effective online or on the campaign trail, could backfire under the spotlight of cross-examination. Mr. Trump’s attorneys, though, are likely brainstorming how to convey to a jury Mr. Trump’s sincere belief that the election was stolen and that the prosecution of him is political. Both of those positions have been mainstays of his public pronouncements about the case, and tentpole positions of his campaign for re-election. Who better to articulate them than Mr. Trump himself?Mr. Smith writes that he “anticipates calling witnesses with knowledge of information protected by certain privileges, including the attorney-client privilege and the Speech or Debate privilege,” and he wants Judge Chutkan to bar Mr. Trump from cross-examining those witnesses about matters protected by those various species of privilege. That request is particularly salient given that Mr. Trump is likely to assert the privileges of the presidency at every turn. The contours of that immunity is the question before the D.C. Circuit and, once they have decided, likely the Supreme Court. If those higher courts find that Mr. Trump is entitled to some measure of immunity, it will be Mr. Smith who will be required to tread with caution.

If Trump Is Boxed In by Jack Smith, Would He Roll the Dice and Testify at His Own Trial?

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