Will Trump testify? What he says and why it’s a risky bet

(CNN) — Prosecutors and defense lawyers for former President Donald Trump opened the New York criminal trial on Monday by laying out their opposing sides of the case.

It’s clear that a main point of contention will be what occurred at a pivotal August 2015 meeting between Trump, his former fixer Michael Cohen and the former publisher of the National Enquirer David Pecker at which they are said to have agreed to find and suppress negative stories that could affect Trump’s 2016 presidential campaign.

Cohen and Pecker would go on to facilitate hush money payments that benefitted Trump. The crime Trump is accused of committing is falsifying documents to hide those payments after he became president. Cohen went to prison after pleading guilty to violating campaign finance law. Pecker has cooperated with authorities.

Cohen and Pecker, both now split from Trump, will be key witnesses for the prosecution, and they are expected to detail what they say occurred at this meeting where they conspired to find and kill stories unflattering to Trump.

An open question will be whether the third person in that meeting, Trump, will take the stand in his own defense to give his side of the story.

While he is under no obligation to testify, Trump has promised he will. Asked by a reporter at Mar-a-Lago earlier this month before the start of jury selection if it would be risky for him to take the stand, here’s what he said:

“I don’t know, I’m testifying. I tell the truth. I mean, all I can do is tell the truth. And the truth is that there’s no case, they have no case,” Trump said.

Last week, Trump told reporters outside the courtroom that he wants to testify.

But taking the stand could lead to Trump, under oath, being asked some very uncomfortable questions.

What prosecutors can and cannot ask Trump if he testifies

Judge Juan Merchan, in a ruling about the scope of what Trump could be asked, took an expansive attitude, as CNN’s reporters in the courtroom, Kara Scannell, Lauren del Valle and Jeremy Herb, note.

They add in their real-time courtroom posts that prosecutors can cross-examine Trump on multiple legal setbacks in recent years:

► $464 million civil fraud verdict – Trump was found to fraudulently inflate the value of his properties.

► Gag order violations – These were committed during the civil fraud trial for which Trump was fined $15,000.

► Defamation and sexual abuse liability – Juries in federal courts found that Trump defamed former magazine columnist E. Jean Carroll when he denied her rape allegations. Trump was ordered to pay $83.3 million.

► His failed foundation – Trump reached a settlement with the New York attorney general that led to the dissolution of his namesake foundation.

Merchan ruled prosecutors could not ask Trump, if he testifies, about his lawsuit against Hillary Clinton that a judge said was frivolous or the 2022 Trump Organization tax fraud conviction against his company.

In a CNN Opinion piece, Joey Jackson, a CNN legal analyst and criminal defense attorney, described what kind of defense he expects from Trump’s team during the trial. Jackson argued that no matter what Trump says, whether he testifies “will likely be a game time decision.”

When CNN’s Jake Tapper asked Will Scharf, one of Trump’s attorneys, if he believes Trump should testify, Scharf also said that decision should be based on “how the trial proceeds.”

“I have said that I think President Trump will be a compelling witness if he does testify, because at the end of the day, he did nothing wrong,” Scharf said.

When juries and a judge have seen Trump testify, he lost

The first Carroll trial jury in 2023 was played a videotape of Trump’s deposition by lawyers. At one point in that testimony, Trump mistook a photo of Carroll for his ex-wife Marla Maples. Read more about key moments from the video.

Trump briefly took the stand in separate defamation proceedings in January 2024.

At his civil fraud trial in 2023, there was no jury, but Trump did take the stand during the proceedings. He brought a bombastic and combative style that drew rebukes from the judge in the case, Arthur Engoron, who later ordered Trump to pay a $355 million penalty.

Trump has already talked about the case

Even if he doesn’t testify under oath in the New York criminal trial, Trump has already said quite a bit about the case – comments that could presumably be brought into evidence. During comments outside the courtroom last week, he tried to explain the payments reimbursing Cohen for the payment to the adult film actress Stormy Daniels.

“I was paying a lawyer and we marked it down as a legal expense,” Trump said. “Some accountant I didn’t know marked it down as a legal expense. That’s exactly what it was, and you get indicted over that?”

In a series of tweets in May 2018, before Cohen’s ultimate guilty plea, Trump admitted to paying Cohen and said that money was a “reimbursement.”

Here are those Trump tweets all together:

Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign, from which he entered into, through reimbursement, a private contract between two parties, known as a non-disclosure agreement, or NDA. These agreements are…..

…very common among celebrities and people of wealth. In this case it is in full force and effect and will be used in Arbitration for damages against Ms. Clifford (Daniels). The agreement was used to stop the false and extortionist accusations made by her about an affair,……

…despite already having signed a detailed letter admitting that there was no affair. Prior to its violation by Ms. Clifford and her attorney, this was a private agreement. Money from the campaign, or campaign contributions, played no roll in this transaction.

Prosecutors also told jurors they will hear recordings Cohen made of conversations in which he and Trump discuss the payments.

Not a hush money case, but an election interference case

One other key thing to note out of the prosecution’s opening statement is that they want to portray this case as an election interference case rather than a hush money case.

“They’re reframing this,” CNN’s Paula Reid said of prosecutors. “Not just as a paperwork crime and an effort to cover up this hush money payment by falsifying business records, but as an effort to interfere in the 2016 election.”

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