Donald Trump's Clever Court Move

Donald Trump made a smart move by not testifying in his New York fraud trial on Monday, an attorney said.

New York-based trial lawyer Colleen Kerwick said that, as long as a gag order remains in place, Trump is better off staying away from the witness stand.

Judge Arthur Engoron has already fined Trump twice for breaching a gag order that prevents him from criticizing court staff.

Kerwick, who has represented clients in New York state and in federal court, said that if Trump said too much in court, Judge Engoron could either find that he had breached his gag order or jail Trump indefinitely for contempt of court.

"The court is also within its authority to grant summary criminal contempt for behavior or disturbances, directly tending to interrupt its proceedings, which can include jail time," she said.

That could also include any attempt by Trump to refuse to answer questions.

Kerwick pointed to the 2014 case of People v. Tyrone Sweat in which a man was jailed for refusing to testify against his brother at Erie County Court in York.

Sweat had been granted transactional immunity, which means that he could not claim self-incrimination as a reason for not testifying as he has been guaranteed to be safe from criminal prosecution.

Asked in court why he wouldn't testify, Sweat replied: "I don't want to, so I don't." He was then jailed indefinitely for contempt of court.

The New York Court of Appeals later upheld the judge's decision to jail him until he testified and said it was not double jeopardy as Sweat had not been given a formal jail sentence for contempt.

"Defendant's conditional imprisonment was for the remedial purpose of compelling defendant's testimony," the Court of Appeals ruled.

Kerwick said that Trump's team can introduce evidence in other ways, such as expert testimony, without the risk of putting Trump on the witness stand.

Trump had been scheduled to testify on Monday and only announced on a social media post on Sunday that he would not be taking the witness stand.

Newsweek sought email comment on Monday morning from Trump's legal team.

A New York University professor, Stephen Gillers, previously told Newsweek that it would have been very difficult for Trump's lawyers to contain him on the witness stand.

Defense lawyers aren't allowed to ask leading questions in civil cases, allowing Trump to deliver long-winded, open-ended answers, Gillers said.

"The opportunity for Trump-style speechifying is great because the defense lawyers cannot ask leading questions, as the state's lawyers did when the state called the same witnesses. That means the defense lawyers' questions will be open-ended by comparison, which creates platforms for long-winded answers that include irrelevant information," he said.

Leading questions are questions that can be answered with a yes or no answer, such as "Did you sign this document?" Lawyers representing the New York attorney general, Letitia James, were allowed to ask leading questions when Trump was called as the attorney general's witness on November 6.

Even then, there were angry exchanges between Trump's lawyers and Judge Arthur Engoron, who accused Trump of "making speeches" from the witness stand and said he would dismiss Trump as a witness if Trump's lawyers didn't rein him in.

Trump, his sons Donald Trump Jr. and Eric Trump, as well as The Trump Organization, are co-defendants in the $250 million civil fraud trial brought by James, who is accusing the former president of inflating his net worth by billions of dollars to obtain benefits such as better bank loans and reduced tax bills.

In September, Engoron ruled that Trump, his adult sons, their businesses, and executives committed fraud in their property evaluations. The court will decide on six other accusations, including falsifying business records, insurance fraud, and conspiracy claims. Engoron himself will rule on the charges, as Trump's legal team did not opt for a jury trial.

The former president denies any wrongdoing, and he has repeatedly claimed the litigation was politically motivated.

Making 'Speeches'

While Trump was giving direct evidence on November 6, he accused Engoron of being among the Trump haters who were out to get him.

"You and every other Democrat district attorney, A.G., and U.S. attorneys were coming at me from 15 different sides, all Democrats, all haters," Trump told the judge.

Engoron angrily accused him of making "speeches" from the witness stand and threatened to dismiss him as a witness.

Trump's chief attorney, Christopher Kise, stood up and told the judge: "With this witness, it's far more efficient to listen and take it all in."

Engoron snapped at Kise: "No! I'm not here to hear what he has to say. I'm here to hear him answer questions. Sit down!"

Engoron then told Kise he had better rein in Trump's speech making. "We got another speech. I beseech you to control him if you can. If you can't, I will. I will excuse him and draw every negative inference that I can," Engoron said.