Former President Donald Trump's legal team appears more focused on leveraging his New York fraud trial to lay the groundwork for a future appeal, turning the proceedings into a fundraising event and relying on the trial as an excuse to avoid other court dates, rather than attempting to secure a victory, legal experts say.
Privately, his team has held conversations about how they believed losing this trial was inevitable. Their most viable option would be to contest the case in an appellate court, two sources familiar with the matter told Rolling Stone.
Trump, who is facing a substantial threat to his real estate holdings, could risk destabilizing his entire financial standing. Engoron has already ruled to revoke Trump's business licenses after determining that the ex-president and his company committed years of fraud by inflating his assets and net worth on his financial statements. By December, he may be ordered to pay up to $250 million or more in penalties.
"The Trump team seems to be almost conceding failure in the trial court and planting the seeds of an appeal,” trial attorney Bernard Alexander told Salon. “Most litigants focus their energies on winning at trial, based on the facts and the law, not orchestrating circumstances for an appeal. It does not bode well to be conceding failure in the trial court, attempting to pressure the judge with threats of reversal on appeal, rather than prevailing based on squarely addressing the facts and the law."
The former president’s lawyers have contested nearly every piece of evidence presented by New York Attorney General Letitia James and also cautioned New York Supreme Court Justice Arthur Engoron that each of his rulings will face intense scrutiny from appellate judges, with the likelihood of reversals, The Daily Beast reported.
Their tactics include dragging out the process, asking long-winded questions and repeating them. His lawyers’ attempts to stretch the proceedings and continuously bring up legal arguments that Engoron has already barred have been met with frustration from the judge.
But even after being sanctioned and ordered to pay $7,500 for repeating the same arguments, Trump’s attorneys haven’t shied away from relying on the same tactics as part of their defense.
“Trump’s lawyers are perilously close to being sanctioned once again and more heavily by Judge Engoron for their misconduct,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. “They are behaving in manifest bad faith by intentionally delaying and obstructing the proceedings and deliberately creating a spectacle to promote Trump's fundraising. Lawyers in any legal proceeding foresee an appeal if they lose and try to make a complete and proper record for appellate review.”
Things have started to heat up in the courtroom. On the trial’s third day, the judge accused the defense of wasting time after Trump lawyer Jesus Suarez repeatedly asked longtime Trump accountant Donald Bender lengthy questions about specifics from 2011 to 2020.
"Counselor, can we lump this all together against using the same principles?" the judge asked.
While Suarez agreed, he persisted in prolonging the questioning.
"I don't talk just to hear myself. I'm precluding you from doing this," Engoron said.
Lead defense lawyer Christopher Kise assured the judge that they would “attempt to streamline this as much as possible,” arguing that the “devil’s in the details,” per the Daily Beast.
Tensions escalated at that point, with Engoron addressing the Trump team's apparent strategy to delay.
“This is ridiculous!” Engoron said, per The Beast. “To the reporters: I’m pounding the bench again. This. Is. Ridiculous! There's no point in going through each line. I'm just being logical here.”
Kise shot back saying he’s “never had to negotiate how to ask questions” and argued that it “makes a poor record.”
“Trump’s lawyers are not seriously trying to make an appellate record but are engaging in grandstanding and gamesmanship,” Gershman said. “Given the powerful evidence amassed by the attorney general, Trump’s lawyers know he will lose and are engaging in stunts, games, and frivolous tactics in violation of New York State ethics rules. The appeals court likely will take into account the misconduct by Trump’s lawyers when it reviews the case and probably agree with Judge Engoron’s sanctions against them.”
His attorneys have already been sanctioned by fines, he added. If they repeat their misconduct, they can be fined “more heavily and even threatened with being found in contempt and possibly be jailed.”
“Trump’s lawyers are acting unprofessionally and apart from Judge Engoron’s sanctions may be subject to an investigation and discipline by New York’s disciplinary authorities which could result in suspension of their license and even disbarment,” Gershman said.
But delay tactics can often be “effective” too, Alexander pointed out. Under certain circumstances, the opposition gets worn down by the “very tedious nature of the battle”.
“Delay tactics can have a tendency to dissuade the opposition, or get people to just give up,” he added. “Defense attorneys are basically saying, 'we're playing the long game, and we're going to wear you down.'”
That tends to be more effective in the private sector than the public sector though, Alexander said, explaining that when the government has a track record of persistence, that's "less likely" to be an effective approach.
Trump himself has continued to maintain his image as a victim of a "witch hunt" — delivering speeches outside the courtroom and using his 2024 presidential campaign to send out email blasts referencing the ongoing legal battle.
“I just left the courthouse for the first day of my unjust trial in New York,” his first email said. It ended with a request to make a contribution “to peacefully DEFEND our movement from the never-ending witch hunts.”
In front of reporters, Trump has complained that the judge has “already made up his mind” and should be “disbarred.”
“This is a judge that should be out of office,” Trump told reporters. “This is a judge that some people say could be charged criminally for what he’s doing. He’s interfering with an election, and it’s a disgrace.”
While the Trump team’s tactics may be focused on fighting the case on appeal, he doesn’t stand a chance of being successful, Gershman predicted.
“There is no chance that Trump and his co-defendants will be successful at trial or on appeal,” he said. “The attorney general’s case presents overwhelming evidence over many years of dishonesty, fraud, and self-dealing.”
Alexander agreed and added that he doesn’t think “you can take odds on the appeal at this point” since the legal record is being made and “the facts are in dispute.”
“For a court order to be reversible, the appellant has to demonstrate that an adverse consequence has arisen from the order,” he said. “The trier of fact is going to decide whether former president Trump’s conduct was illegal.”
