(Photo by Win McNamee/Getty Images)
The Democrats have asked Donald Trump to testify as a witness at the impeachment trial. Trump is refusing to testify because, he says, the request for testimony is a “public relations stunt.” Others might think that he’s refusing to testify either because his testimony would be unhelpful or because he’s likely to perjure himself.
This naturally got me to thinking — both about Trump as a witness at an impeachment trial and Trump as a witness at the multitude of other trials in which he’s likely to be called as a witness in the next year or two.
I’m really thinking about Trump testifying live at a trial — either in the well of the Senate or in the witness box of a courtroom. Videotaped testimony that Trump might give outside the Senate or at a deposition before trial would raise different issues.
First, Trump as a live witness, in the well of the Senate, at an impeachment trial:
This would be a complete disaster.
Trials work because juries perceive there to be an impartial person, who’s wearing a robe and overseeing the proceedings, dispensing justice.
Suppose a witness doesn’t answer a question. The judge raises an eyebrow and says gently, “I don’t think you answered the question. Please answer the question.”
Everyone in the courtroom watches closely. The jurors have seen the person in charge gently chastise the witness. The witness is mortified. The witness generally answers the question.
If not, the judge says, in a more stern voice: “I asked you to answer the question. Please answer it.”
Everyone in the room is now wide awake, sitting on the edge of their seat, watching the proceedings with excitement.
When things get really out of hand, the person wearing the robe says, “If I see another outburst like that, I’ll hold you in contempt of court.”
In 20 years of courtroom work, I never saw things get worse than that. The witness always complied.
But, if necessary, the judge could have gone further: “I hold you in contempt of court. Bailiff, put the witness in handcuffs and take him away.”
That’s in part why a trial works: A neutral person is in charge, and the neutral person has power over the witness.
Now, imagine an impeachment trial, with Trump as a witness and Democratic Senator Patrick Leahy as the presiding judge. This is not at all a room in which lay jurors think the neutral person wearing a robe is dispensing impartial justice.
“Please answer the question.”
Does anyone honestly believe that Leahy’s gentle nudge would cause Trump to answer the question?
“Another outburst like that, and I’ll hold you in contempt of the Senate.”
“Witch-hunt! Cancel culture! How dare you try to silence me? The American people have a right to hear what I’m saying!”
“I hold you in contempt of the Senate. Sergeant at Arms (Is that the guy who would do it? Heck if I know), please put him in handcuffs and take him away.”
The Senate could then hold a vote on whether to uphold Leahy’s decision. The vote would predictably split 50 to 50. There would be endless wailing and gnashing of teeth. It would be a spectacle, but nothing would be accomplished.
I, at least, am delighted that this spectacle will not occur. (It would be great to watch on TV, but it would be terrible for America.)
Second: How about Trump as a witness at other, later, civil trials in which he’s likely to take the stand?
I’m thinking now about Rule of Evidence 608(b):
Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
So Trump could be impeached (we really need another word for this — I’m using it here in the sense of “have his credibility challenged”) to attack his “character for truthfulness,” although “extrinsic evidence” would not be allowed.
This may work for the usual witness, but it doesn’t really work for a loquacious president. When a person has said so much so publicly about matters with which the public is fully aware, simply raising a subject makes the point; there’s no need for “extrinsic evidence.”
For example, here’s a possible introduction to a series of questions to pose to Trump:
On February 26, 2020, you said this about the coronavirus:
You have 15 people, and the 15 within a couple of days is going to be down to close to zero …
Did you believe that to be true at the time you said it? Was that what your scientific advisors were telling you? Blah, blah, blah.
The 608(b) cross-examination about the coronavirus alone could occupy a week or two of trial.
(Actually, it wouldn’t surprise me if one of the “Never Trump” groups took a stab at drafting a generic 608(b) cross-examination of Trump and then posted it on the web for all to use. Those groups would want to be sure that no lawyer screwed this up.)
After the coronavirus cross was finished, the cross-examiner could move on to other subjects on which Trump had spoken publicly in ways that an average juror would likely believe to be untruthful.
Courts had better block out a bunch of time for any trial in which Trump will take the stand.
You thought Trump on the telephone was bad? Trump as a witness will be a true disaster.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.