Trump under oath: Six things to watch for as the former president testifies

NEW YORK — On Monday, Donald Trump will leave the campaign trail for a place where he’ll still be the center of attention: a witness box.

The former president is set to testify in the ongoing $250 million civil fraud trial concerning a lawsuit in which Trump stands accused of orchestrating sweeping corporate fraud by inflating his net worth. New York Attorney General Tish James, who brought the case, alleges that Trump, his adult sons and their business associates used falsified documents about his net worth in order to obtain favorable terms from banks and insurers.

Trump is no stranger to answering questions under oath. Over a career filled with legal problems, he has sat for depositions time and time again, including since he left the White House. But when he takes the stand Monday, it will be his first time in a decade giving extended testimony in open court. (He did spend a few minutes on the stand late last month testifying about out-of-court remarks that violated a gag order.)

The judge overseeing the case, Justice Arthur Engoron, ruled prior to the start of the trial that Trump and the other defendants are liable for fraud with regard to the financial documents concerning his net worth, so the trial largely concerns the level of monetary penalties they will face.

Lawyers for James have already called Trump’s sons Donald Trump Jr. and Eric Trump to testify. Now, James’ office will call Trump as a witness, and later in the week, the attorney general plans to call Trump’s daughter Ivanka Trump, who was previously dismissed as a defendant in the case.

With all eyes on the former president, here are six things to watch for.

What questions will Trump face?

Lawyers for the attorney general’s office are expected to ask Trump primarily about his level of involvement with the financial statements at issue and whether he directed the people creating those statements to inflate his net worth. He will likely face questions about the reporting structure of the Trump Organization and how that changed after he became president, as well as whether he intended for banks and insurers to rely on the allegedly fraudulent financial documents.

Will he use the witness stand as a campaign stump?

He can try. Since the start of the trial in early October, Trump has attended court proceedings a few times per week, and he has used those visits — specifically his entrances and exits from the courtroom itself — as an extension of the campaign trail, holding forth before dozens of news cameras to comment on the trial or other news events.

While he is testifying, the judge will likely direct him to keep his answers responsive to the questions being asked. That doesn’t mean he will.

If he doesn’t, and seeks to insert political commentary or remarks on other subjects, the judge will likely order that stricken from the official court record. But even so, Trump’s remarks, on or off topic, can still be reported by the media or others in the room.

Can he invoke his right against self-incrimination (aka plead the 5th)?

Yes. If he does, he will be the first witness to do so since the start of the trial. But because it is a civil trial, pleading the 5th carries a risk: The decision-maker (in this case, the judge) may draw what’s known as an “adverse inference” — an assumption that, if the witness had answered, the answer would have been counter to the witness’ interests.

Will he say anything that could hurt him in any of his other cases?

There is some overlap between the civil fraud case and Trump’s pending criminal case in New York. In the criminal case, the Manhattan district attorney has accused Trump of falsifying business records in connection with hush money payments to porn star Stormy Daniels.

Both cases involve allegedly fraudulent conduct within the Trump Organization, and both rely heavily on a key witness: Trump’s former personal lawyer and fixer, Michael Cohen. In one sign of the overlap between the two cases, Cohen testified during the fraud trial last month that lawyers from the attorney general’s office attended meetings he had with the Manhattan DA’s office.

Anything Trump says under oath on Monday about the structure of the Trump Organization — and anything he says about Cohen — could potentially be used as evidence in the hush money case.

Will he blame one or both of his adult sons?

He might, at least implicitly. After Trump became president in 2017, he put Donald Trump Jr. and Eric Trump in charge of the family business. In their testimony last week, Donald Trump Jr. pinned responsibility for the company’s financial documents on their accountants while Eric Trump denied any involvement with or knowledge of the documents.

In a videotaped deposition, Trump hinted that he could pin the blame on one or more of his children. "My son Eric is much more involved with it than I am,” he said. “I've been doing other things. And I guess you could say on something major, final decisions, whatever. But I've been much less involved in it than — over the last five years, five or six years than ever before.”

Will he criticize the judge (or his law clerk)?

Trump has not held back on blasting the judge throughout the trial, calling Engoron “tyrannical and unhinged” and a “fully biased Trump Hater.” But those were out-of-court remarks, and Trump’s answers on the witness stand are supposed to be in response to the questions being asked (which presumably won’t be about the judge). However, Engoron has given other witnesses some leeway in comments that stray from direct responses to the questions at hand.

And as the judge noted Friday, he has exempted himself from the gag order. “You can say anything you want to about me,” Engoron said. “There's no gag order about me. And that has been taken advantage of.”

Trump may also be tempted to criticize Engoron’s law clerk, Allison Greenfield, whom Trump and his lawyers have repeatedly griped about. Greenfield sits beside Engoron on the bench and therefore will be just a few feet away from Trump himself, with Engoron in the middle. But the judge’s gag order expressly prohibits Trump from speaking about her. Trump has already incurred two fines for violating the gag order, and the judge has threatened much more serious punishments, including holding him in contempt of court or jailing him, if he violates it again.