The Genius Tactic of Pissing Off The Judge

For both simple and complex reasons, there is no jury in the New York attorney generals case against Donald Trump. The verdict will be in the hands of Justice Arthur Engoron. If that name sounds familiar, it might be because Trump has mentioned it numerous times during his impromptu courthouse hallway pressers along with words like “deranged,” “disbarred” and “criminal.”

You don’t tug on Superman’s cape, you don’t spit into the wind and you don’t — I would think — defy and needle the very person who holds your financial fate in his hands.

Most sentient people would think it a poor tactic to attack and anger the decision maker in a very serious matter that stands to topple your jenga empire. Not Trump. Is there method to his madness?

One obvious reason is that Trump is furious that Engoron ruled that he inflated the value of his assets and effectively took away the licenses Trump needs to operate his properties in New York. Billionaire-hood is a crucial component of Trump’s self-image.

He’s really rich. He said so when he said he doesn’t want donations.

But if he’s not as rich as he claimed, that would reflect poorly on his integrity.

Another obvious reason is that Trump likes the publicity. Trump complained that the trial took him off the presidential campaign trail, but in fact his presence in the courtroom wasn’t required. He chose to be there because he knew he’d get more camera time than if he were working the crowd in, say, Nashua, N.H.

Would he have gotten any less camera time coming out of the courtroom if he adjusted his tactics enough to attack people other than Engoron? Maybe, but he could have probably mustered a sound bite that would have made the news without antagonizing the judge.

A less obvious reason is that Trump and his lawyers are looking past Engoron to the almost inevitable appeal. That mostly unspoken possibility popped up in court on Tuesday when Engoron told Trump’s lawyers not to reintroduce arguments that he’s already knocked down.

“That’s why we have appeals,” Engoron said.

While it’s likely true and correct that Trump and his lawyers are pretty much screwed before the trial court at this point, which is not to say that Justice Engoron won’t render a fair and proper verdict, but that the judge isn’t likely to suffer any twinge of empathy toward Trump’s hard times. So yes, if the defendants have no chance of prevailing before the trial court, they focus their efforts to win before the appellate court. One method of doing so is creating and exploiting every possible claim of prejudice by the trial judge.

But appellate judges are hep to the jive. Believe it or not, Trump isn’t the first stable genius to come up with the tactic of manufacturing prejudice by attack the judge. And appellate courts are shockingly unsympathetic to this tactic that would, if permitted, enable every defendant to create the rift he later claims denied him a fair trial.

I asked her about the Trump team’s strategy of repeatedly bringing up arguments that Engoron has already rejected. She said it’s what lawyers call “preserving the record” — making sure that trial records include all arguments that they might want to put forth on appeal. It’s a basic principle of litigation that any argument that isn’t raised at trial cannot be raised on appeal.

Preserving the record is critical to maintain arguments on appeal, but that’s what lawyers do in court on the record, not defendants in the hallway calling the judge names. If anything, Trump’s lawyers have gone well beyond preservation to the point of frivolity. You’ve made your argument and gotten your ruling. Move along.

Trump’s lawyers, in trying to keep their client happy, “may find themselves wedged between the requirement that they preserve all of their client’s potential arguments for an eventual appeal and the likelihood of incurring additional sanctions for continuing to make similar unsuccessful and potentially ‘frivolous’ arguments,” Janet R. Gusdorff, an attorney specializing in appeals, wrote to me in an email.

Of course, appeasing a recalcitrant and, some might say, ignorant client who insists on his lawyers making absurd arguments or pounding away at preferred argument over and over, after they’ve been expressly rejected, is neither needed, useful or ethical. But it does make the client happy for all the wrong reasons.

That suggests a fourth reason Trump and his lawyers are challenging Engoron. It’s related to publicity-seeking, but goes beyond it. Trump’s modus operandi is to undermine any institution that stands up to him, whether the news media or the military or the courts. Causing people to lose confidence in the judiciary may be “precisely” what Trump is banking on, Gusdorff wrote, “to minimize the effects of the lawsuit and increase voter support for his 2024 presidential bid.”

Trump’s standing with his supporters relies on one thing, they’re blind faith in his claims no matter how false, wrong or nuts. The case before Judge Engoron is not without its legal issues that might serve as a sound basis for appeal, but nuanced legal arguments don’t play with the crowd. For Trump to be revealed as a shameless liar and phony, not by a judge or attorney general who hate him, but by the evidence that overwhelming shows he’s a shameless liar and phony, not only spells the death of the Trump mythos held so dear by his most ardent supporters, but ruin of the one thing that matters more to Trump than anything else.

More than money. More than the presidency. More than his family. It would reveal Trump as a nobody. Trump would do anything to prevent that from happening, and if denigrating the judge who will decide the fate of the Trump organization is the only weapon he possesses to defend his pretense of importance, he will fire away.