Trump choosing not to testify in his own defense should be a banner headline

Close observers of Donald Trump’s hush-money-coverup trial have known from the get-go that there was essentially no chance Trump would testify in his defense. Anything he said under oath would have consisted of either perjury or confession.

But now it’s official. The defense has announced its three witnesses, and none of them are the defendant; the judge has said testimony will end Tuesday. It is, at this point, crystal clear that he’s not going to take the stand.

And that ought to be a huge news story, with banner headlines big enough that even those who have not been paying attention will take notice: TRUMP WON’T TESTIFY IN HIS OWN DEFENSE.

Because even though the jury shouldn’t hold it against a defendant if they choose not to testify, when a bloviator like Trump is afraid to take the stand, the verdict from the court of opinion should be blistering.

Blistering because he has previously promised that he would defend himself.

“Yeah, I would testify, absolutely,” he said at a press conference in Palm Beach just before the trial “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.”

Blistering given how much sympathy Trump has tried to elicit for being subject to a very narrow gag order that he nevertheless violated 10 times.

Here’s what he posted in April on Truth Social: “Crooked Judge Juan Merchan is not allowing me to talk, is taking away my First Amendment Rights, he’s got me GAGGED, because he doesn’t want the FACTS behind the Gag to come out”. A few days later, he complained: “I’m not allowed to defend myself.”

And blistering because he’s running for the highest office in the land, yet won’t make his case under oath.

Ordinary people might well ask:

• If he’s innocent, why isn’t he speaking up in his own defense? (Or as Trump himself has said: “The mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”)
• What is he afraid of?
• What about his obligation, as a public figure, to explain this to the voters?
• And if he gets convicted, won’t it be his own fault for not testifying?

These are all reasonable questions. But they won’t be asked if the media doesn’t even bother to take notice of what may eventually be the single most memorable element of this trial.

To be clear, there are legitimate legal reasons for a defendant in a criminal trial not to testify on their own behalf, starting with the fact that it’s their constitutional right not to be forced to incriminate themselves.

Also, since it’s the prosecution that has to prove the criminal conduct beyond a reasonable doubt, the best defense often amounts to asserting that the prosecutors failed to make their case, rather than trying to prove the defendant’s innocence.

That’s why juries are prohibited from considering in any manner that the defendant did not testify.

But the court of public opinion is under no such obligation. And, notably, it is the court of public opinion that is voting in November.

The problem, as usual, is that the journalists covering the trial are writing for each other and their editors, rather than for the public at large. And to that narrow audience, it isn’t news that Trump won’t testify. They’ve assumed that from the beginning.

So even as it has become more and more evident that he won’t defend himself, the media response has been ho-hum. We’re getting savvy takes instead of news. Some reports about the trial schedule don’t even mention that it means Trump isn’t going to take the stand.

Some reports, laughably, seem to take Trump at his word. “Trump claims he wants to testify at his trial. No one else thinks he should,” reads the Politico headline.

In a story headlined “Prosecutors rest their case against Trump. Now it’s his turn,” NPR lamely reported that “Trump could still testify in his defense, as he originally vowed to, though he didn’t answer reporters’ questions Monday morning over whether that was still his plan.”

The Washington Post kinda sorta broke the news in an understated story on A10 on Sunday  headlined “Lawyer preparation suggests Trump won’t testify in New York trial.”

Devlin Barrett, Josh Dawsey and Shayna Jacobs wrote that “After brashly declaring he wanted to testify in his criminal trial, it appears increasingly unlikely that Donald Trump will do so.”

Then, in the second paragraph, they made excuses, writing that “Defendants rarely testify in their own defense, because their lawyers advise them that the risks of doing so, particularly when it comes to being questioned by prosecutors under oath, are simply too great.”

Trump, however, is no ordinary defendant. No previous defendant in a criminal case has promised to testify, complained about being gagged, and been in the middle of a presidential campaign. That brings with it some extra responsibility to explain oneself.