ESTRICH: How to lose a lawsuit

No lawyer would ever advise a client to do what Donald Trump has done. He has perfected the art, if you can call it that, of attacking and trying to intimidate the judges who will decide his fate. In New York, at the conclusion of his fraud trial — which is not a jury trial, but will be decided by the judge — he stood up and declared the proceeding to be a “political witch hunt.”

Ignoring the judge’s specific admonition that he stick to the facts of the case and not give a campaign speech, that is exactly what he did. “We have a situation where I’m an innocent man. I’ve been persecuted by somebody running for office and I think you have to go outside the bounds,” he added. “What’s happened here sir is a fraud on me … They want to make sure that I don’t win again and this is partially election interference … I deserve damages,” which is not on the table. According to news reports, Trump directly attacked the judge before he cut him off saying, “You have your own agenda, I certainly understand that. You can’t listen for more than one minute.”

Attacking the judge in open court, as he has been doing outside the courthouse and on social media, as well as attacking the judge’s staff, is no way to win a lawsuit. The only thing that is more likely to lead to defeat is to walk out of the courtroom and threaten “bedlam” if the court rules against you, which is precisely what Trump did last week after the argument in front of the D.C. Circuit in which Trump’s lawyers claimed that he was absolutely immune from prosecution for crimes committed while he was president. According to news reports, and as many of us assumed, the panel hearing the case was deeply skeptical of the extreme and unprecedented position taken by the Trump team. The only things more outrageous than the legal argument were the statements Trump made outside after the argument was over.

“I think they feel this is the way they’re going to try and win, and that’s not the way it goes,” Trump said. “It’ll be bedlam in the country. It’s a very bad thing. It’s a very bad precedent. As we said, it’s the opening of a Pandora’s box.” He literally evaded a reporter’s question after this statement as to whether he was condoning political violence. This was literally three days after the third anniversary of the Jan. 6 attack on the Capitol. His refusal to simply condemn political violence is, quite literally, shocking.

President Joe Biden responded: “Trump won’t do what an American president must do; he refuses to denounce political violence. So hear me clearly, I will say what Donald Trump won’t: Political violence is never acceptable in the United States — never, never, never. It has no place in the democracy. None.”

And what did Trump do next? He threatened to go after Biden if he returns to office. He’s made this threat before. “Joe would be ripe for indictment,” he said in a video. “He has to be careful because that can happen to him also.” No one forced Trump to attend these court hearings. There is no way his presence, or the statements made inside and outside the courtroom, helped his legal case, which his aides have told reporters is the reason he chooses to attend these court sessions. He is, plainly and simply, using them as political theater, as campaign appearances, to juice up his supporters to buy the fictional lie that Trump is the victim of political prosecutions.

That may be what his supporters believe and want to hear. It may help him raise money, as he has done every time he has been indicted. But decades of experience have taught me that political theater does not sway judges. It simply doesn’t work that way. Ignoring the limits set by the court, as Trump did with the judge in New York, does not intimidate a judge who has repeatedly stood up to Trump in an effort to protect his own staff from the former president’s vitriol. The only thing that could be less effective is to threaten the judges with predictions of political violence. Trump is weaponizing the judicial system for his own political gain, but in the long run, he will face the consequences. And the long run may not be as long as he hopes.