As prosecutors near the home stretch of their criminal case against Donald Trump, one of the biggest questions looming over the historic trial is whether the former president will take the stand in his own defense.
Just last month, before jury selection began, Trump insisted he would be on the witness stand in Manhattan criminal court in New York City.
"I would testify, absolutely,” he said April 12 in response to a question from NBC News. “I’m testifying. I tell the truth. I mean, all I can do is tell the truth. And the truth is that there is no case.”
A week later, after the trial started, he told reporters at the courthouse that, "yes," he will testify.
Since then, Trump has added caveats when he has been asked the same question.
He told Newsmax two weeks ago that he would testify "if necessary," and on Tuesday he said in an interview with Spectrum News 1 Wisconsin that he would “probably” take the stand, adding that he “would like to.”
After taking the stand herself, adult film actress Stormy Daniels appeared to be trying to goad Trump into testifying himself.
"Real men respond to testimony by being sworn in and taking the stand in court. Oh...wait. Nevermind," she wrote on X.
As a defendant in a criminal trial, Trump is under no obligation to testify.
"It's conventional wisdom among defense attorneys that there's a lot of risk to having your client testify, and the risks often outweigh the benefits," said Duncan Levin, a former prosecutor in the Manhattan district attorney's office who is now a criminal defense lawyer. But in this case, "traditional rules could be thrown out of the window."
"Nobody knows what he's going to do, including his own lawyers," Levin said of Trump. While his attorneys have most likely advised him not to take the stand, Levin added, "He is an uncontrollable client who has a constitutional right to testify."
The state judge presiding over the case, Juan Merchan, reminded Trump of that right in court last week, after Trump incorrectly told reporters that the gag order barring him from attacking witnesses and jurors meant "I'm not allowed to testify."
Merchan told Trump, "You have an absolute right to testify at trial, if that is what you decide to do after consultation with your attorneys.
"It is a fundamental right that cannot be infringed upon," he said. He said the gag order pertains only to "statements that are made outside of court. It does not apply to statements made from the witness stand."
Arthur Aidala, a veteran New York lawyer whose clients have included Harvey Weinstein, said, "I have my best success when my clients do not take the stand," adding that the jury would undoubtedly like to hear from Trump.
"Human instinct is people want to hear both sides. They want to see him take the stand and see what he can say," Aidala said.
Levin said there are matters Trump could testify to "that would be helpful to his case," including elements of the charges brought by the Manhattan DA. Trump is charged with falsifying business records related to reimbursing his then-lawyer Michael Cohen for a hush money payment to adult film actor Stormy Daniels in the closing days of the 2016 presidential campaign.
Prosecutors contend that Trump was trying to cover up an effort to improperly influence the election. He has pleaded not guilty and denied any wrongdoing.
Trump "could testify he did not intend for it to be about the election" and that he was in the dark about the records' being falsified because he was preoccupied with other matters, as he was president at the time he signed Cohen's checks, Levin said.
Aidala agreed, saying Trump could tell the jury, "I no longer had the luxury of time to keep track of these matters." But Trump would also "have to admit what he cannot deny," including that he signed Cohen's checks and that he knew what they were for.
If he were to testify, Trump would most likely face days of cross-examination from prosecutors, who would "make him out to be a liar," and that affects any defendant, Aidala said.
Merchan has already ruled that prosecutors can ask Trump questions about findings in recent civil cases that he violated gag orders and was found liable for defaming writer E. Jean Carroll and committing fraud.
Levin said Trump's testimony could be “a land mine” given the evidence against him so far. “It’s going to be nearly impossible to refute things," he said, adding that "a lie in a courtroom is a far more serious thing than a lie on the campaign trail."
"If the judge determines he lied on the stand, that would be the basis for a sentence increase" if Trump is convicted, Levin said.
Asked whether political considerations could force Trump to take the stand to deny the allegations, Levin said he did not think so, because Trump can make denials through the media and at his campaign rallies.
"He's better off when he’s not under oath and subject to cross-examination," Levin said.
In terms of advice about whether Trump should take the stand, Aidala said he would wait to see how Cohen's testimony goes before he made a recommendation. Cohen is expected to detail his private conversations with Trump about the hush money payment and the reimbursement, but Trump's team is expected to go after Cohen's credibility, including his admissions that he has previously lied under oath.
"Ultimately, it's Trump's decision," Aidala said.
Trump testified in his two most recent civil trials — the civil fraud case brought by New York Attorney General Letitia James’ office and the defamation case brought by Carroll.
His testimony in the Carroll matter was severely limited by the judge’s ruling in the case; it lasted only a few minutes.
In the fraud case, Trump testified when he was called as a witness by James’ office and launched into repeated attacks on her and the judge. Trump was also listed as a defense witness in the case, but he backed out of testifying the night before he was scheduled to take the stand.
“I have already testified to everything & have nothing more to say other than this is a complete & total election interference (Biden campaign!) witch hunt,” so “I will not be testifying,” Trump announced at the time on his social media platform, Truth Social.
The judge in that case, Arthur Engoron, found Trump liable for fraud and hit him and his company with a judgment that now totals over $450 million. In his ruling, Engoron said Trump’s testimony had not helped his case.
“Overall, Donald Trump rarely responded to the questions asked, and he frequently interjected long, irrelevant speeches on issues far beyond the scope of the trial. His refusal to answer the questions directly, or in some cases, at all, severely compromised his credibility,” Engoron wrote.
