Trump's Latest Decision in Rape Trial Could Save His Campaign

Late in the day Tuesday, Joe Tacopina—the lawyer defending former President Donald Trump in a defamation case tied to the rape allegations against him from journalist E. Jean Carroll—announced his client would not be taking the stand in his own defense, denying jurors the opportunity to hear directly from the accused.

The move was derided by critics as a sign of Trump's supposed contempt for the process and as a tacit admission of the risk Trump's presence would pose to his defense under cross-examination. Some said the decision to not appear for trial could give jurors the impression he was not taking the case seriously, particularly given the fact he was in Scotland playing golf at the time of the trial.

"It's almost unheard of for a defendant in a civil case like this, outside the statute of limitations for criminal charges, to not testify on his own behalf," Jeff Weiner, a former president of the National Association of Criminal Defense Lawyers, told Newsweek in an interview.

To others, the choice not to testify was the only sound legal strategy at Tacopina's disposal. And one that could potentially save his campaign.

"The first axiom of any trial involving Trump is that he cannot testify," Harry Litman, a senior legal affairs columnist at the Los Angeles Times and a former U.S. attorney wrote in an April 13 column about another case involving the former president. "There isn't a respectable lawyer in the country who would put him on the stand."

"Trump's lawyers have a predicament," former federal prosecutor Neama Rahmani told Newsweek in an email. "They can't put him on the stand, because he would be subject to a brutal cross-examination about decades of alleged improprieties toward women. Trump is unpredictable and notorious for ignoring his attorneys' advice, so it would be difficult to prepare him and there is no telling what he'll say."

Trump's absence, however, leaves the door open for others to speak for him.

Carroll—who has already undergone three days of questioning in the case while under oath—is already expected to be joined on the stand by two other women who claimed Trump raped them, despite Tacopina's efforts to keep them from testifying. On Tuesday, 81-year-old Jessica Leeds, one of the two women, told jurors Trump grabbed her chest and ran his hand up her skirt as they sat side by side on a jet bound for New York City in the late 1970s.

Carroll's legal team also reportedly plans to use a 45-minute video of Trump's deposition regarding the case in helping frame his state of mind toward the allegations, all contextualized by his previous statements about the treatment of women. In March, the federal judge overseeing the trial ruled Carroll's legal team could include an infamous leaked tape from a 2005 episode of Access Hollywood in which Trump appears to gloat about his past sexual transgressions.

"When you're a star, they let you do it [...] Grab them by the pussy. You can do anything," he said in the tape.

His own words during the deposition, paired with that context, might be enough to do him in. Carroll's legal team, notably, never issued a subpoena forcing Trump to testify, University of Alabama law professor and former U.S. Attorney Joyce White Vance pointed out in a tweet Tuesday afternoon, an indication of "just how strong the deposition is in their view."

What's in Trump's deposition that could hurt him isn't yet known.

While the court has already unsealed 15 pages of transcript from Trump's deposition, much of it has already been publicized—including Trump's denials of ever raping Caroll in the dressing room of the Bergdorf Goodman department store in the mid-1990s—and largely consists of on-record statements the former president had already made on the case.

But whatever gets released, Nahmani noted, would arguably do little to help him: leaving Carroll's team broad leeway to shape the narrative of the case.

"Without testifying or even appearing in court, Trump will probably lose this case," Nahmani said. "The jurors have heard a one-sided account of what happened, and Carroll's lawyers can pick and choose what pieces of deposition testimony to play in court."

But Trump's deposition also features something else: Trump's apparent confusion with Carroll and his own wife, Marla Maples, in a photo featuring Trump and the two women together, which some said could pose a threat to his defense. The photo, notably, has already been used in court against him and presents compelling enough evidence for the plaintiffs to make a case Trump was capable of sexual assault.

"If Marla Maples was his type, and then he looks at a picture of E. Jean Carroll and thinks it's Marla Maples, how credible is it for him to then say, she's not my type?" Lisa Rubin, an MSNBC legal analyst, told talk show host Mehdi Hasan on Tuesday. "Which E. Jean Carroll testified, is basically a translation for, she's too ugly to assault."

Should Trump lose the case, the implications are less severe than they could be in other cases. The E. Jean Carroll case is a civil case—rather than a criminal one—with penalties that would not include the type of jail time that could be involved in a Manhattan hush-money case or a looming inquiry into his efforts to overturn the result of the 2020 election in Georgia.

Staying silent—even if it means losing—could be worth it.

"Trump doesn't want to win the battle and the lose the war," Rahmani said. "He's facing criminal charges in New York and maybe elsewhere and has his eyes on the White House. Losing a civil trial and paying a judgment to Carroll is a better result than Trump saying something that can be used in a criminal prosecution or that costs him the presidency."