Trump's lawyers dance for him when he's in the courtroom. At a criminal trial, that could torpedo his chances of winning.

  • When former President Donald Trump shows up at his trials, his lawyers tend to act out.

  • In his forthcoming criminal trial, he’ll be required to attend every single day.

  • It’s a challenge for the judge to keep everyone in line — and for his lawyers to do their job well.

When former President Donald Trump enters a courtroom, everyone knows it.

An electric charge fills the air. Heads turn. Secret Service agents flank him and glare around the room. Cameras, if they’re permitted, click. He is tall — he claims 6-foot-3 — and often carries himself with the posture of a boxer entering the ring. Often, everyone else is already in their assigned places. When Trump takes his seat at the defense table, the judge sees it as a cue to start.

Trump makes sure his lawyers know what he thinks. He whispers incessantly to them, sometimes rising to an audible mutter. He frowns. He crosses his arms. Sometimes, he straight up walks out. His lawyers grow louder and more animated. They moan about how he’s too busy running for president to sit in a courtroom. Indignant, they reach further in their arguments.

Trump has now lived through three civil trials since he left the presidency. All were abject failures for him.

As he runs to recapture the presidency this year, the stakes for Trump and his lawyers are about to get higher.

As soon as April, Trump is set to begin his first criminal trial, less than a block away from the fraud trial where government lawyers won a verdict that would claw hundreds of millions of dollars from him, and from two other trials where jurors determined he owed millions more to E. Jean Carroll for sexually abusing and defaming her. And at a criminal trial, causing a ruckus can bring its own consequences.

For the first criminal trial judge he’s expected to face, Justice Juan Merchan of the New York Supreme Court has shown little patience in pretrial hearings for sophistry, dillydallying, or tomfoolery from Trump’s lawyers. If he believes Trump has had a hand in their circus, he may impose a harsher sentence or hold the former president in contempt of court.

In his civil trials, Trump’s physical presence was optional. During one, he didn’t show up at all. In a criminal trial, Trump, along with his eager-to-please lawyers, must attend every day.

If his attorneys repeat their antics, Trump’s ego may be served, but his interests likely won’t.

The stakes in court are about to get higher

In May, Trump didn’t show up at a sexual-abuse and defamation trial against Carroll. A jury found him liable and slapped him with a $5 million verdict. In January, Carroll had a second trial against him. This time, he showed up. Trump and his lawyers tried to trammel over the judge’s instructions. He acted “like the bully who doesn’t follow the rules that he thinks don’t apply to him,” Roberta Kaplan, Carroll’s lead attorney, told Business Insider. Jurors hit him with an $83.3 million verdict.

Not long after that, the judge who oversaw the Trump Organization’s civil fraud case ordered him to fork over $355 million in fines — which are now closing in on half a billion dollars with interest. Trump attended intermittently throughout the three-month trial, sometimes to testify and sometimes just to check in on how things were going, like a parent trying to ensure their child was doing their homework.

When Trump decided to show up in his civil trials, the proceedings were noticeably more tense. His lawyers, who always treated the case as beneath them, refracted Trump’s more open contempt. Arthur Engoron, the presiding judge, shrewdly called out the dynamic. Trump, he suggested, was the real audience for how the lawyers were acting.

“Are you talking to me, or the press, or your audience?” he quipped in response to an argument from one of Trump’s lawyers.

Attorneys representing Trump in the Manhattan criminal case declined to comment for this story.

Donald Trump speaking to press hallway criminal Manhattan

Trump speaks at Manhattan criminal court after a hearing in his hush-money case.TIMOTHY A. CLARY/AFP via Getty Images

A Manhattan grand jury has indicted Trump on 34 counts of falsifying business records. He committed crimes, prosecutors allege, by disguising payments to Stormy Daniels, an adult-film actor who says she had an affair with him, to hush her up before the 2016 election.

Technically, Trump faces a maximum of four years in prison for each count he’s charged with in his criminal case. But few legal experts believe Trump would serve any prison time, certainly not 136 years.

Jurors might buy Trump’s argument that the hush money was to save his marriage with Melania Trump, not to influence a presidential election, which could bump the counts from a felony down to a misdemeanor. And even if jurors convicted him on all counts, Trump would be a first-time offender for a white-collar offense and an old man still running for president. Given the sentencing guidelines, it’s hard to see how a prison cell fits in.

The worst-case scenario, then, is likely a felony status, probation, and monetary fines.

Any lawyer will tell you it’s important to have a client involved throughout a case. But a good lawyer’s job is to translate the client’s perspective into language that the judge and jury will understand so they can win the case, according to Kaplan, who represented Carroll in both of her trials against Trump.

“As a lawyer, being able to filter what a client says to you in court as things are happening in real time can be a challenge,” Kaplan told BI. “I think that when it comes to Donald Trump, that was a particularly difficult challenge.”

If Trump acts out, his lawyers will have to handle that pressure. Attorneys for Carroll have observed that Trump’s lawyers behaved differently on the days he attended, with them acting less collaboratively and appearing unwilling to follow the judge’s rules. Kaplan said Trump “was busy passing notes to his lawyers.”

“It seemed pretty clear that whatever he wrote down in those notes, the lawyers then basically just repeated it out loud in open court,” Kaplan said. “Not only did his lawyers seem to be very aware that he was there, but he seemed to be actively involved in what they were saying and what strategy they were employing before the judge and the jury.”

Eliza Orlins, a New York public defender, told BI that it’s clear Trump was already getting special treatment. When her own clients have spoken out of turn or appeared boisterous, she’s had instances where judges ordered them removed from the courtroom in handcuffs.

“As a public defender, my clients are poor and most of them are people of color,” Orlins said. “And if they acted even a little bit of in the way that Trump acted in his civil trial, there’s no doubt in my mind they would be taken out of court in handcuffs and forfeit their right to be present during their trial. I mean, that is absolutely without a question.”

donald trump susan necheles

Republican presidential candidate, former U.S. President Donald Trump sits with attorney Susan Necheles during a pre-trial hearing at Manhattan Criminal Court on February 15, 2024 in New York City.Steven Hirsch-Pool/Getty Images

Trump is not without success in court. For decades, when it came to lawsuits against the Trump Organization, he was an expert at delaying cases until they ran out of steam. In the New York Times reporter Maggie Haberman’s book “Confidence Man,” she says he once successfully warded off a criminal investigation into his company from federal prosecutors in Brooklyn. And while many of his companies have gone bankrupt, Trump has scrupulously avoided personal bankruptcy.

And, until recently, Trump has avoided being a defendant before a jury. In the second Carroll trial, the jurors seemed alienated by his approach to courtroom decorum, Kaplan said. While Trump might huff and puff in negotiations, at political rallies, and on Truth Social, that kind of bluster “is not very compatible with how people are supposed to behave in court,” she said.

“I think that’s what really hurt him at the last trial,” Kaplan said. “And I don’t think he thought that’s what would happen. So I think the verdict was surprising to him.”

While the judge in the New York attorney general’s fraud case found Trump violated his orders, his lawyers have skirted harsh consequences during the trials. US District Judge Lewis Kaplan, overseeing the Carroll trials, once threatened to put Trump’s lawyer Alina Habba “in the lockup” when she refused to follow his instructions (he’s not related to Carroll’s lawyer).

With Trump sitting next to them every trial day for six weeks, his lawyers will be put to the test yet again.

“I think both he and his defense team do an excellent job of walking up as close to the edge of the cliff as they can,” Randy Zelin, a former New York state prosecutor, told BI. “But so far, they’ve been very successful in not falling off of it.”

2 paths for the hush-money judge

The judges who presided over previous Trump trials took very different approaches.

Engoron, presiding over the New York attorney general’s civil fraud case, didn’t have a jury. He allowed a relatively freewheeling atmosphere in his courtroom. Mindful that Trump would appeal, Engoron allowed his lawyers wide latitude in their arguments. When Trump himself took the witness stand, Engoron rolled his eyes as he allowed Trump to sermonize about his company’s brand value and allegations of misdeeds against Attorney General Letitia James of New York — then struck the irrelevant material from the court record.

Kaplan, overseeing the two Carroll trials, kept a much tighter grip on the wheel. He had precluded certain arguments in the trial and was highly attuned to whether Trump or his lawyers might try to get them in front of the jury anyway. Before Trump testified, Kaplan quizzed Habba about what he would say on the witness stand. When Trump sat at the podium, Kaplan cut him short when he went beyond directly answering the questions.

Trump was enraged by Kaplan’s approach.

“This is not America,” he told reporters in the courtroom as he left after testifying.

Merchan seems more inclined to adopt Kaplan’s approach in the hush-money trial. Because of the case’s enormously high profile, the jury is at risk of learning outside information and would need to be protected. Orlins, who has practiced before Merchan, said the judge would have little tolerance for misbehavior.

“It’s going to be very hard for Trump to really maintain his decorum in that courtroom,” she said. “And I can see the judge getting very fed up with that.”

juan merchan

Judge Juan Merchan poses for a picture in his chambers in New York, Thursday, March 14, 2024. Merchan could become the first judge ever to oversee a former U.S. president’s criminal trial. He’s presiding over Donald Trump’s hush money case in New York.AP Photo/Seth Wenig

Merchan has given indications of his approach in his pretrial hearings. During what should have been a routine scheduling hearing in February, he lost patience with Trump’s lawyers, who repeated themselves as they complained about his busy court calendar.

Prosecutors also seem to be trying to make Kaplan’s style the template for Merchan’s case. They cited some of Kaplan’s jury-selection decisions and called him a “well-regarded federal judge” in the hearing. Zelin said Merchan was likely cognizant of the potential for Trump’s case to become “OJ revisited.”

Merchan has already denied requests from media companies to allow cameras in the courtroom, limiting them to the hallway outside.

“This particular judge runs a very tight courtroom, has little patience for the histrionics and the theatrics,” Zelin said. “I think Team Trump will come close to that line, but I do not believe that they will cross it.”

It’s possible that Trump’s different lawyers might behave differently. Someone like Habba doesn’t often practice in federal court and may have had little to lose, Zelin said.

“If I’m never going to see this judge again, I’m more likely to take risks than if I’m in this court every day,” he said.

But someone like Susan Necheles, one of his lead attorneys in the Manhattan hush-money case — who defended the Trump Organization in its own criminal trial before Merchan in 2022 — is well-known in the New York bar. She’s less likely to want to risk her reputation before a judge, according to Zelin, who called her a “pro.”

“Her reputation does mean something to her over and above representing the former president,” Zelin.

Trump is thinking about a bigger arena, treating the courts as a stage for his campaign.

His aides take seats in the courtroom gallery and watch on. (In his civil fraud trial, which spent a lot of time on the finer points of real-estate accounting practices, they sometimes appeared to doze off.)

Trump has thus far approached the case with a kind of nihilism, Zelin said. He has already primed his political base to view New York’s jurors, judges, and law enforcement as illegitimate. Success, to Trump, means convincing Americans that the justice system is rigged, Zelin said. The criminal trial will give Trump a chance to hold multiple campaign-boosting rallies before the hallway cameras each day.

“I don’t know that his end game is anything more than, ‘I just want to get reelected, and that’s going to be by any means necessary,'” Zelin said. “I don’t really think he cares about the outcome of this trial because it is not going to impede him from being reelected.”

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