The Lawfare Podcast: Trump’s Civil Fraud Trial

Tristan Snell: Trump has tried to argue that that's extreme, it's never been done before, it's unprecedented. He's dead wrong. That is completely untrue; it happens actually on a fairly regular basis. Look, does it happen all the time? No! But that's because what's also kind of, I wouldn't say unprecedented, but rare, perhaps, is how big of a fraud this was. You don't see frauds this big every day. So you don't see companies being stripped of their corporate charters every day. But, the legislature put that provision into place for a reason. And you can make a very good argument that that reason is here. It's now, this is the case that justifies it.

Anna Bower: I'm Anna Bower, Lawfare Legal Fellow and Courts Correspondent, and this is the Lawfare Podcast, January 12th, 2024.

On January 11th, 2024, Donald J. Trump arrived in a New York courtroom for closing arguments in the civil fraud case brought against the former president, his company, and his adult sons. The suit, brought by the state's attorney general, Letitia James, alleges that Trump and his company misled lenders about the former president's net worth, in order to secure better business deals.

The case is not Trump's only legal trouble, but it's one that could have a consequential impact for his family business and the image he has crafted for himself as a richer than rich, deal-making businessman. What are the legal issues at stake? What might Trump argue on appeal? And how could the outcome affect Trump's finances?

To talk it all through, I spoke with Tristan Snell, former New York Assistant Attorney General and lead prosecutor in the Trump University fraud case. Tristan is also the author of a forthcoming book called Taking Down Trump. It's the Lawfare Podcast, January 12th, 2024: Trump's Civil Fraud Trial.

So today marks closing arguments in the civil fraud case brought by New York Attorney General Letitia James. It's one of several criminal and civil cases against Trump. So let's start with some background. What is this case all about and what are the illegal issues at stake?

Tristan Snell: So, this case hinges on a New York statute called Executive Law 6312. It is the workhorse statute, as I talk about extensively in my book, for the whole office, not just for financial cases. It covers every type of business activity. The statute that folks may be more familiar with in New York is called the Martin Act. That covers the sale of securities. That act was passed earlier back in the 1920s. Executive Law 6312 was passed in the '50s. It is, however, modeled after the Martin Act and covers pretty much any type of business activity.

What it makes illegal is fraud. They're-- the courts in New York have determined exactly how that is defined and it is not common law fraud or a fraud that could be brought on the criminal level. But, instead, it's statutorily defined by case law in New York that has been developed over, basically going back to the Martin Act, where intent is not required, nor is reasonable reliance by the defrauded party on the misrepresentation.

So, in other words, it really dispenses with, now you don't need to worry about intent, now you don't need to worry about-- one of Trump's main defenses here is, "There's no victim." And that doesn't matter here. The fact that, whether or not the Deutsche Bank folks reasonably or unreasonably relied on the misrepresentations, is not material here.

 So it's a statutory fraud case, and there is a whole wealth of case law in New York interpreting and applying the statute. It's the same statute that we used in the Trump University case. It's the same statute that the AG uses in probably about 90 percent of their affirmative cases, I would imagine, are brought at least with one Executive Law 6312 claim.

So this is very familiar turf for New York, for the AG's office, as well as for the New York judiciary. And that's really what this is about. That applied to these financial statements that Trump made to banks and to other parties regarding the size, specifications, and valuations of his various properties. And then he inflated all of those numbers as much as double to 33 times as much. And that's what this case is about.

Anna Bower: So with that background, Tristan, what is Trump's defense here and what has his legal strategy been in defending himself against this case?

Tristan Snell: Yeah, so, I'll try to do that in multiple parts here.

There's really what his strategy has been, and then there's what could possibly be a legal defense for him. And those two things have not necessarily done the same thing. I basically go through in my book a lot about what is his playbook for fighting any of these cases, not just the Trump University case, but all of the, the current present ones too.

I talk about the AG case extensively as well-- including the criminal cases that are about to start. At the end of the day, a lot of it is to, it's to delay. It's to distract, it's to divert. A lot of times he doesn't really have the facts of the law on his side. And as of course all lawyers know the old saying about how if you have the law, you argue the law. If you have the facts, argue the facts or pound the facts. And if you don't have either the law or the facts, you pound the table. And Trump is definitely in the "pound the table camp." So that's what he's been doing very much in this case. He's trying to goad Judge Engoron into doing something that could be appealable. That has failed so far. Then he has tried to delay as much as possible. Of course, he's been doing that the whole time. Obviously that is now--he's out of delays that he can manufacture here, although, he'll try to do some at the appellate level.

Those have been the main things and then besides that he's trying to play to the crowd. Which is really one of his only other moves to the hoop. And he's doing that to drum up donations. He's getting his supporters to pay for everything. So a lot of the theater and him going to New York, like he is today, and going and whining about the injustice of it all is not because he's going to get the court to give him a different outcome. It's because he wants people to feel sorry for him and give him money. I mean, it's really this sort of like sad violin thing where he's then trying to get people to donate. So that's his strategy.

In terms of actual legal defenses, like I said, he's been trying to shot out this notion that there's no victim, but that doesn't really apply here. The law does not require that there be a victim here. The plaintiff is the People of the state of New York, and this is about having a transparent, open marketplace where you don't have lies running rampant. The legislature of the state of New York long ago made these determinations that having an open and fair marketplace demanded that these laws be put in place.

And there's similar laws in most states. There's some similar laws at the federal level. It's what the Federal Trade Commission exists for in part, is to apply the notion that you should have truth in business. Obviously the world often falls short of that goal, but that's what the legal ideal is, okay?

So even if there isn't a victim, there is still an illegality here. That's the idea. So that argument doesn't really do much and isn't really gonna get him very far. He has some arguments about statute of limitations that we don't need to open up that box just yet unless you want to. But I can talk about that. That's a whole thing. We can put that aside for now. Really, one of the only other arguments that he can make is--remember: He's already lost on summary judgment, right? The fraud claim was already found to be a success. And he applied, Judge Engoron, applied what is in 6312, which is the ability to cancel corporate charters and put companies into receivership.

That is a power that Executive 6312, has in it. That is a provision there. That is something that the court can then apply. The AG's office asked for it, the court has applied it. That's going to get appealed and then I think that's really going to be the biggest question mark on appeal is going to be, is there some way that he can avoid that quote unquote "death penalty" for his businesses in New York, where they would be taken from him and put into receivership?

In terms of what he can still win here at the trial court, not a lot. It's already over. At the end of the day, this case was over before it started at the trial level. The summary judgment already limited this a lot to math, really, and some other ancillary questions that are not that interesting.

The AG's office spent a lot of the trial talking about numbers, but then also making sure to authenticate a lot of these documents and financial statements and whatnot. That's why they put all the Trumps on the stand--was really for evidence authentication purposes more than anything. And we've had some arguments around the math and then they've actually upped their number, the AG's office has, from 250 million to 370 million based on the testimony and evidence that we've now heard. So to sum up again: Really, it's that, does he really have any more argument here? It's like, not really. He is going to be liable for fraud, there's going to be an amount, it's going to be large, how large is going to be up to the judge.

Then we're already kind of previewing what's going to happen on appeal, and that gets into these other questions of the applicability of 6312 and the appropriateness of that cancellation of corporate charter penalty.

Anna Bower: Yeah. So I do want to get into some of the stuff that could happen on appeal. And I think the statute of limitations issue is interesting. So, we can talk about that a little bit. But, first, let's talk about what happened yesterday. Closing arguments of course are today. And you mentioned in a moment ago that part of Trump's strategy is playing for the crowd and playing for his base. It's not so much a legal strategy as it is maybe more of a political strategy that we've seen play out in some of his other criminal and civil cases.

And to that end, for a brief moment yesterday, it appeared that Trump might deliver part of his closing arguments himself. But, the judge subsequently barred him from personally delivering that argument, apparently after he did not agree to abide by the rules set by the judge. So, Tristan, in your experience, is it common for defendants in a case like this to deliver closing arguments on their own behalf? And what happened yesterday in terms of, you know, Trump was going to make arguments, then he wasn't. What do you make of all of that?

Tristan Snell: It's not common. I think we can say that pretty safely. You know, that's the kind of thing that someone would do if they were a criminal defendant with mental health problems. I'm going to be honest here. I studied--you're clerking for a federal judge, and you see a lot when you have that job. And the times that you see any party try to argue on their own, it's usually someone with mental health issues, frankly. And it's usually either a criminal defendant or a pro se plaintiff that is having trouble grasping reality, possibly. Those are the folks that you usually see try to argue in their own defense. This is not common. I think that it really was probably an attempt to just get on his soapbox and make arguments that were not going to be legal so much as political, so much as playing to his crowd.

Look, for him, the political and legal defenses or strategies kind of go together, because at the end of the day, we saw him violate a court order, for monitoring of his business assets for the Trump Organization, to pluck 40 million in cash out of the Trump Organization and use it for personal expenses. Of all of the places where he could have gotten that money from: bank loan, other properties that he could have liquidated, other cash streams he could have tapped into, something. He went to the one bucket of money that was actually being watched by a court. That just shows how desperate he is for cash, in my view, and so, I think a lot of the legal strategy is --he needs all that--it is a legal strategy for him to play to the crowd because that's how he's funding everything, that's where the money's coming from to pay for all these lawyers and all these cases.

So, yeah, back to the question of him actually delivering part of this closing argument on his own, the judge played it by the book. There are rules for doing all of these things. It's similar to also what's going on down in Florida with the with the protective order. Trump doesn't think any rules, even standard basic court rules, apply to him. He's always going to try to push to get his own set of rules, to get special exceptions. Judge Engoron was not having it, so that was it. So he had to follow the same rules that anybody standing up in court to do that would have, particularly if they're not a lawyer and they don't have professional ethics binding them as an officer of the court. He basically had to follow the same kind of rules that that would apply to an officer of the court. He wouldn't follow them, so no.

Anna Bower: Yeah. And I think it also goes--it kind of shows just how personally Trump has taken this case. It's been very interesting because this isn't the only legal trouble that Trump is facing as, Lawfare listeners are well aware. There's four ongoing pretrial proceedings and four different jurisdictions for criminal cases. And yet, it seems that this is the case that Trump has really taken the most personally, has become the most personally involved in. He's attended many of the events that have been going on in court. He frequently attacks the Attorney General and the judge and the judge's clerk on his social media posts.

So, does that say something about what the potential effect of this judgment could have on Trump's organization? And, what are we looking at if the Attorney General succeeds in getting this massive penalty of 370-plus million? What could the legal impact be on the Trump Organization and Trump's financial well-being?

Tristan Snell: Yeah. Part of it is, I do think, he's taking it personally. And part of it, I think, is that it's the one that's kind of on right now. I do think we're going to see him do a lot more engagement with some of these criminal matters as they actually pop up when he finally has to go to court for more of those.

I do think you're going to see him do similar things, but I also agree with you that this is personal for him. These are the businesses that he has cultivated over 40-plus years in many cases, and it's all potentially going to get taken away from him, or, at least parts of it are going to get taken away from him.

So what could we see here? There's the cash aspect, which is not trivial, as I was just saying. I am of the belief that cash is actually going to become a problem for him if it isn't already, for some of the reasons I was just saying. When he had to pay the 25 million dollar settlement for the Trump University matter back in 2016-2017, he borrowed that money. He didn't just have it in cash lying around. He had to borrow it. It's actually one of the loans, and he borrowed it against collateral in these buildings. It was actually one of the loans at issue in this new case, is the loan that he had to take out to pay the Trump University settlement.

I don't think that he's got a lot of liquidity. So I think that a--that was 25 million. He plucked 40 million out of Trump Organization within the past few months. If he has to pay 250 to 370 million or more to the state of New York, that's gonna be a problem.

Now, it may get stayed pending appeal. I think it probably will be. Let's just be honest, I think that's probably what's gonna happen. So he won't have to pay it right away. But, that bill's gonna come, and I don't know how he's gonna pay it. There's also facts that like, once that cloud is hanging over him, even if it's pending appeal, are banks gonna continue lending to him, if they know that this is what's coming his way?

And then I think the bigger impact is going to be, okay, now we talk about these iconic buildings of his, like Trump Tower and 40 Wall Street, that are potentially going to get taken away from him and put into receivership. If you know--thinking back to law school, it's like, oh, yeah, what's a receivership? But, you might remember it from being the thing that happens in bankruptcy. Like, that's really what this is akin to. It's basically gonna be the businesses get stripped from him and are going to be then administered by a court-ordered receiver and a court-appointed receiver. And then they're almost certainly gonna get liquidated.

That's what's gonna happen. And then there's debts against those buildings. So all of these banks hold the debt against those buildings and they're gonna have to--all those creditors are gonna have to get paid off. We don't know whether or not he's above water on any of those buildings. I think there's a good chance he isn't. So, he's not going to get anything back from the liquidation of those buildings. All of the money is going to go to the banks.

So, this is what could happen. It could be absolutely devastating. It turns off his revenue engine and makes it more difficult for him to rob Peter to pay Paul.

Anna Bower: Yeah. And all of which is to say, there almost certainly is going to be an appeal. There already is an appeal, as I understand it, that is pending as it relates to the summary judgment stage, the earlier decisions that Judge Engoron already made that--separate from this kind of more penalty phase and some of these other discreet issues.

So, let's talk about the appellate issues. What are Trump's potential for success on appeal on some of these issues? You already talked about some of the application of the statute, but there's also the statute of limitations issue. And then another thing that has been raised by Trump's team again and again, is this idea of a bias by the judge and the judge's clerk. So let's talk about that. What will happen on appeal?

Tristan Snell: So on appeal, and of course this is going to go to an intermediate appellate court first, the Appellate Division First Department, and that is the geographic area that covers Manhattan and a few others, but that's where it's going to go first.

Then it would go to the New York Court of Appeals, and that is an appeal as of right. So we will be hearing from both courts in all likelihood regarding this matter. Normally I would say that each one would take a year to do, like that's pretty standard, or longer. We had to go up on appeal in the midst of the Trump University matter back in the--it was sort of in the 2014-2015-2016 time frame--regarding statute of limitations, so I'll get to that in a minute.

Whether these could be expedited further is, I think, a big question mark. I think that the AG's office is probably--I hope that they argue that there should be some expedition because of Trump's violation of the court order and plucking the 40 million dollars out of the Trump Organization to pay for his personal expenses in violation of that order. Because it could show that he is going to try to alienate the assets while the case is pending appeal. I really hope that the AG's office makes that argument. And I hope it actually succeeds. I do think it's a big, big risk; that he is going to somehow figure out how to fritter away a bunch of these assets, suck as much money out of those businesses as he possibly can, so there's not as much left when the hammer comes down. Or the gavel, I suppose. But that's on timing.

Then on issues for appeal, we do have the possibility that they're gonna try to say that 6312 shouldn't apply here, or they might make a facial challenge to say that 6312 is somehow unconstitutional or unconscionable or I don't even know what they would say there. I don't think that's going to succeed. I don't think that any New York court is going to take that seriously. I think that they could try to say that there wasn't enough evidence to support that judgment. I think that's gonna fail. There's a mountain of evidence to support this judgment, and the bar is very different. He can't change what the bar is. Trump is gonna try to import, or try to say that the courts have had it wrong, and that there should be some importation of the standard for common law fraud, or for criminal fraud, imported or grafted on to the statutory fraud provision. I don't think that's going to work either. Like I was saying earlier, there are decades and decades of cases regarding these statutes, the 6312 and the Martin Act. You would be overthrowing almost a century of New York case law to find that 6312 or the Martin Act requires that the misrepresentations are intentional, or that it requires that the defrauded party was reasonable in its reliance on the misrepresentations.

I just don't think that's gonna happen. I think they'll try and it's gonna get briefed and it's gonna get argued. A lot of what Trump does in these situations is he uses due process against itself. He makes an argument that is superficial and basically bullshit. But he actually--but it forces kind of an immune response from the judiciary that it's like, "Well, we must take this argument seriously. It's been put in a brief. Now we have to actually brief it and argue it." That's what's happening with the immunity case too, at the federal level on J6. But, back to the appeal for this, I think that you're going to see, they're going to try to make that argument regarding, saying, "Oh, there's no intent. Oh, there's no victim." And it's like, that isn't actually what the law is in New York. So I don't think that's going to fly. I doubt that that's going to happen. I doubt that the appellate courts are going to throw out a century of New York case law. I do think that Trump will probably have more success or at least is going to get more of a--it's going to require more decision making bandwidth and argument bandwidth on the statute of limitations and on the cancellation of the corporate charters.

I think that's probably where you're going to see the most action. It's going to be very dry. We will love it. We lawyers will love this. That'll be, we'll enjoy it. Non-lawyers are going to look at those issues that are gonna get briefed in this and they're gonna be, it's just gonna be snooze. Like, it's not gonna be a very fun or interesting set of topics.

But, let's talk about the statute of limitations. So the issue there is a couple things. One, each of these financial statements, are they treated as a discrete misrepresentation, or do you treat them as a continuing violation? As everybody probably remembers, if they think hard enough, with some of these things that probably put us to sleep back in the day, the continuing violation doctrine basically says that if the misdeed, the tort, whatever it is, in this case the fraud, never stopped, if the scheme never stopped, the clock never starts.

So you actually toll the statute until that scheme ended. That's the argument that the AG's case, that the AG's office is making here. They're basically saying you can actually go back further than it's a six year statute of limitations. I actually retell in great--but, I'm sure to lawyers, fascinating detail--about the fight that we fought on the Trump University case to make that a six year statute of limitations. It later got set by statute. So we know that that's true, but can you go back further than six years? Can you go back to things that they did back in 2011? The AG's office is going to be trying to say yes because that gets the money higher. But, contrary to trump's arguments, if it goes the other way and they can only go back six years, that doesn't wipe out the case. It just reduces the amount of money that is at stake. It doesn't actually, it doesn't get rid of the fraud. Trump's argument, by the way, effectively boils down to-- they're not really arguing that there wasn't fraud, they're just arguing that he should only be responsible for the frauds he's committed more recently. That's effectively his statute of limitations argument.

There are some other things there about then if you made the financial statement, but then that was for a loan that then continued to be serviced over a certain period of time, does that have an impact on the statute of limitations? That's also going to be part and parcel of all of this. And it's going to be interesting, if arcane, to see how all of that plays out. But again, it won't obviate the fraud. It will simply change the amount of the fraud. So, that will be something that you'll see briefed.

I think the more interesting issue, potentially, is on the cancellation of the corporate charters. 6312 does contain a provision for cancelling the corporate charters. The question that's going to get briefed is going to be, is that an appropriate penalty in this case? And it is supposed to be for repeated and persistent fraud and illegality. The AG's office will argue that within the confines of this case, it was done over many, many years. He did it over and over and over again for a variety of different properties. He did it for his condo in Trump Tower. It's 10, 000 square feet. He lied and said it was 30,000 square feet. He did it for a bunch of these buildings where he said that 40 Wall Street was worth this amount, but it was--he said 40 Wall Street was worth, you know, 500 million dollars or whatever it was. Yet, on a tax form, he tried to say that it was worth 17 million. Total. That's it. For the entire building that's like, 50 stories, 60 stories tall. He overvalued it at 33x what he said it was worth in a tax filing. So, which is it? Was he committing tax fraud, or was he committing bank fraud? The disparities here were massive. So, you can make a really good argument that it was repeated, it was persistent, and it was brazen, and it was just extremely massive. That this was a massive amount of fraud, and it was done over many years, and that that alone should get you there.

I would expect to see, or hope to see, the AG's office then throw in there the fact that he violated the court order and plucked that 40 million dollars out, because that itself was another illegality. He violated a court order. I would also expect and hope that they will bring up the other frauds and illegalities that have been committed by this same group of parties. And that includes the Trump University fraud. That includes the Trump Foundation fraud. And that it also includes the case that was brought by the Manhattan DA's office regarding fraud in tax compensation, taxable compensation, to Allen Weisselberg, and a number of other Trump Organization executives, for which the Manhattan DA's office got a guilty conviction. on the company, on the Trump Organization.

I think if you add up all of those things, it definitely shows a pattern of repeated and persistent fraud and illegality that justifies that higher penalty of the companies involved being stripped from his control and being put into receivership. And there is, again, a long history of that provision being applied, being sought by the AG's office, and being applied by a court. Trump has tried to argue that that's extreme, it's never been done before, it's unprecedented. He's dead wrong. That is completely untrue, it happens actually on a fairly regular basis. Look, does it happen all the time? No, but that's because what's also kind of, I wouldn't say unprecedented, but rare perhaps, is how big of a fraud this was. You don't see frauds this big every day, so you don't see companies being stripped of their corporate charters every day. But, the legislature put that provision into place for a reason, and you can make a very good argument that that reason is here. It's now. This is the case that justifies it. But, I think that will be perhaps the most important issue that we're going to see briefed and argued on appeal.

Anna Bower: Yeah. So it sounds like maybe on appeal, it's not so much whether Trump will lose, but how much he will lose.

Tristan Snell: That's right.

Anna Bower: Yeah.

Tristan Snell: I think that's fair to say.

Anna Bower: So, okay. So let's talk a little bit about the actors or the people in this case. On one hand, we have Attorney General Letitia James and her team. On the other, we have Trump's legal team, which includes some familiar Trump legal world figures. That includes folks like Alina Habba. There's also Chris Kies, who for a brief period had worked on some of Trump's criminal cases particularly the classified documents case down in Mar-a-Lago. He was then moved over to , the New York civil trial and some of these other matters.

Tristan, you have a book coming out that is about prosecuting Donald Trump, and how to do that successfully. So in your experience, how have these folks done in this case? How should we judge the performance of the Attorney General's office and then also some of the defense attorneys? What's your view or your take on how they've done?

Tristan Snell: Yeah. So, the book is done up as kind of a playbook or rule book. It has 12 different rules for how to beat Donald Trump in prosecution or litigation, and then that's kind of broken up into three main sections and so forth. But, I have a whole, I have a whole chapter and then some about this particular issue.

One of the rules is all about you really have to focus on the signal, not the noise. Trump is going to wheel in the clown car of attorneys, and he's going to make all sorts of outlandish arguments. He's also going to do a lot of counterattacking. There's a different rule about that. You have to be stoic and stay the course and focus on your case. There is, I think, a temptation, in a situation like that, to go swinging at every ball that they throw at you. And a lot of those balls are going to be in the dirt. And you can't swing at them. You need to basically focus, on what's your case in chief? What law are you trying to apply? What evidence do you have? Stay focused on that.

If he raises a legal argument, and I have a bit about this, like the statute of limitations issue, well, then you gotta actually fight that fight. That's fine. If he actually throws a real pitch at you, go ahead and swing at it. But, if he's going to go into all of this other stuff about bias, I think it's often better, in my view, to basically toss all that aside by saying -- use some sort of snarky lawyerly dismissal of it saying, like, "Trump's irrelevant and immaterial rantings aside," or, I guess you could say, "defendant's or respondent's rantings aside." And you basically just acknowledge that he and his lawyers went on for 50 pages about blah, blah, blah, but just put it aside because it's not actually a legal issue.

We get taught as lawyers to rebut everything, right? Especially if any of, if anybody out there has a background of doing debate, like, you're trained. It's drilled into you. Never let a point drop. Never let a point drop. Rebut everything. You actually have to unlearn that when you go up against somebody like Trump, because he's not playing by the normal rules. He's not playing by parliamentary debate style, back and forth of litigation. He's not doing that. He wants to muddy the waters. He's going to play dirty. He's gonna go after factors that are outside the confines of the case in the courtroom. So you have to be ready for that. And again, it's focused on the signal, not the noise.

And then also he's going to attack you personally. He's going to come after, and obviously we've seen this, and we've seen it even more today, this morning, as we're taping. There was a bomb threat called on Judge Engoron's home out in the suburbs of New York this morning. So this is getting real now. Like, we're not just in words territory. Things are being acted upon by somebody. And we don't know what the details are yet as of, as of this moment. But, at the very least, it's going to be attacking the judge, attacking the judge's clerk, attacking the Attorney General, attacking the Attorney General's staff, with personal incendiary attacks.

That's going to happen. And you just have to be ready for it, and you can't let it rattle you. You just have to stick your head down and focus on the stuff that you can control, which is your case. I think the AG's office, the New York AG's office, is very, very good at knowing how to do this. This is our, I'm our--I'm proud alum of the office, I left a while ago--but, this is the AG's office's playbook at the end of the day. This is the playbook that they have honed over the Trump University case, the Trump Foundation case, and now this case. And now we've seen other litigants and other prosecutors offices follow it. They know it. This is their playbook. They know what to do. They're not going to--and you've seen it happen. Can you name too many, and maybe one or two, but you can't name too, too many of the AG's office attorneys. You can't. And there's a reason for that. That's not the way that office works. You're not there to get the limelight. You're not there to become a star. You're there to put your head down. You're gonna focus on the papers that you submit. You're gonna make the arguments that you need to make. You're not gonna be flashy. You're gonna just get the work done and go home. And that's what they're doing. And that's what you have to do. I think it's maybe part of why that office has been very well suited to dealing with all of that: because it's very much a no frills kind of office. It's a meat and potatoes kind of place, and it's worked wonders because they just aren't getting rattled by the clown show.

Anna Bower: And what about trump's defense team? How would you say their performance has been through all of this? We already talked a little bit about how maybe the political strategy has taken over the legal strategy. But, I'm just curious to hear, what do you make of how they've done? Trump spent a lot of money bringing Chris Kies on. As I understand it, he has a lot of experience. What do you make of Trump's legal team's performance in this case?

Tristan Snell: Yeah, that's also a subject in the book. And of course, I'm sure all of the folks listening and watching this are well aware of some of the things that have happened. But, the way that they handled... Go back to the investigatory phase of this, actually. We can rewind a little bit, a few years ago.

Trump's M. O. is to stonewall, to provide virtually no material, even when demanded to. I think they-- and obviously that is not unique to Trump, right? Any litigator knows that your two main options when you're-- two of the main strategies, of course, there's a third one, which is just do what you need to produce. But, obviously, if you're going to play games, the two things are either give them nothing, or the other side is give them everything under the sun and just bury them in extraneous material.

 Trump is very much in the give them nothing camp, but I think he took it too far. The lawyers managing the case at that point they took it way too far. And they burned out Judge Engoron's patience. He was overseeing that investigatory phase, too. You may recall, that back in, I think it would have been early '22, maybe, or maybe early '23, but it was a while ago now, at least a year, maybe two years ago, we were faced with the first motion to compel from the AG's office where they were -- they dropped like a 80-page brief, pointing out all of the evidence that they did have, thereby pointing to the meritoriousness of their position. But, then also pointing out all of the many, many, many, many, many, many things that Trump was requested to produce, was subpoenaed for. I should say, he received investigatory subpoenas and he refused to produce.

 And also the testimony, because the AG's office was looking to subpoena the testimony of Trump, of Don Jr., of Eric Trump, of Ivanka Trump, and Trump's counsel completely just refused to do anything. And then even once they did--and I'll get to this in a minute-- they still played games even after that.

So first it was that. I would say that they took the stonewalling too far. And then where this really then... Oh, this is just such a mess. If you're going to do that and you're going to piss off the judge, don't you think you want a jury when you actually do go to trial? Do you really want a bench trial with the same judge that fined you over 100,000 dollars for failing to comply with subpoenas? Is that a great idea? It just strikes me as maybe not the best idea as a litigator. So, you know-- this was before Kies was brought in. I think Habba was really running the case at that point. And then, of course we have this infamous thing where it's like, did they fail? Did they forget to check off the box to ask for a jury trial, or did they do it on purpose? Either way, it was an own goal. There's no excuse for doing that, because either you flubbed it and forgot to check off the box on the form, which is literally all you have to do to get a jury. Or, and the AG's office will not be the one to request one. The AG's office would prefer to go on a bench trial because their attitude is, "We've got the law on our side. We've got the facts on our side. We just want no frills straight up. Let's deal with someone who actually is a pro and can handle this. We would prefer to be in front of a judge." that's usually the way the AG's office is gonna approach one of these enforcement proceedings.

Trump needed a jury, because then he could have tried to peel one of them off and try to play to a little crowd, not the big crowd. But, just get a crowd of jurors in there, and actually try to see if he could use that as an X factor to try to get out from under this. And they screwed it up. If they did it on purpose and decided, "You know, we don't really want a jury trial, we want a bench trial." That's also an own goal. That doesn't make any sense to me. Especially, I would say in this case, generally you would want a jury trial because it gives him more opportunity for mischief, frankly. It's very much in his strategy to say, "Let's go try to peel off a sympathetic juror. Okay?" But, then it's even worse if you've already pissed off the judge. So it just doesn't make any sense to me. So that part of the performance is just like, "Dear God, what were you thinking?" Or, I guess, you weren't thinking.

But this is often what he does. He vacillates a lot with hiring and firing lawyers. It's one of his big weaknesses. He can't stay to--he can't stick to a course of action. He's constantly rotating them and it's really, really hurting.

Anna Bower: Yeah. Okay. So let's end on Judge Engoron's decision. As you've said, it's not a jury trial. It's Judge Engoron who's going to make the decision here. And today we have closing arguments. He has said that he won't make a decision, or announce a decision today. But, when can we expect a decision? And in your estimation, what will he decide?

Tristan Snell: That's a good question. So ,yeah, we're not going to get a dramatic bench moment here. As most of y'all know, that doesn't happen super often. Although, I was in the courtroom once for the, far and away, the most dramatic bench ruling moment that I'll probably ever see as a lawyer, which was one of the major Guantanamo cases. The district judge actually granted habeas petitions from the bench and told the council for the government not to appeal as to the ones he had granted. You'll never see that again. That was amazing. People were crying in the courtroom. It was insane.

You're not going to see that in this matter. Judge Engoron is playing it very, very close to the vest. However, he's been with this matter. It's been marinating with him for two plus years now. This is not something where he's then going to have to be like, "Hmm, I wonder what I'm going to decide." He's been seeing this unfold on the papers and then in his courtroom for the last few months.

You can bet your bottom dollar that they've already been working on the opinion, right? They will continue polishing it and so forth and so on. And this is a state court trial judge. You're not going to see a giant SCOTUS-length opinion. This is going to be--the summary judgment opinion that he did a few months ago was, what, four pages, five pages--something like that.

 You're going to see a short, straight, cut-to-the-chase opinion from him, and I actually think it could drop by the end of the month. So, I've literally--and I am not alone in this, a number of other people that I've talked to, because we've been all chattering about this. As I've told people that my book is coming out January 30th, multiple different reporters and commentators have said, "Oh, that's right, we'll probably get a verdict in the Trump civil fraud case," and it's like, we'll see.

But that seems to be where some of the conventional wisdom is landing, is that we're probably going to see something by the end of the month.

Anna Bower: All right. Well, we will be watching for it. Tristan Snell, thank you so much for joining the Lawfare Podcast. We'll leave it there.

Tristan Snell: Thank you.

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