Donald Trump Actions During Trial Convey 'Consciousness of Guilt'—Attorney

Former President Donald Trump's actions during his hush money trial convey a "consciousness of guilt," former federal prosecutor Glenn Kirschner said on Friday.

Trump, the presumptive 2024 Republican presidential nominee, became the first former president in U.S. history to stand trial in a criminal case last month. Following an investigation by Manhattan District Attorney Alvin Bragg's office, Trump was indicted in March 2023 on 34 charges of allegedly falsifying business records relating to hush money payments that were made to adult film star Stormy Daniels during his 2016 presidential campaign. Daniels alleges she had an affair with Trump in 2006, which he has denied. The former president has pleaded not guilty to all charges and said the case against him is politically motivated.

Throughout the trial, legal experts have weighed in on the proceedings and Trump's actions in and outside of court have been a point of scrutiny.

On an episode of the YouTube show The Legal Breakdown posted on Friday, political commentator Brian Tyler Cohen asked Kirschner, a former assistant U.S. attorney and frequent Trump critic, his reaction to Trump recently claiming that he could not testify at his own trial because of a gag order imposed on him.

"Donald Trump is a stone-cold liar all day, every day," Kirschner said. "I don't expect the prosecutors to do this Brian, but they could actually present evidence to this jury that Donald Trump said, 'I'm not allowed to testify because I'm being gagged.'"

He continued: "And then they could ask for a jury instruction from the judge or ask the judge to take judicial notice. That's when something is so obviously provable and it's beyond dispute, like a defendant can testify in his own criminal case, and have the judge inform the jury that in substance, Donald Trump is lying, and it conveys a consciousness of guilt."

Newsweek reached out to Trump's spokesperson via email for comment.

What Is Driving the Story?

On Thursday, Trump claimed he was barred from testifying because of a gag order Judge Juan Merchan, who is overseeing the trial, imposed that bans Trump from making public comments about certain people involved in the case including witnesses and jurors and excluding Merchan and Bragg.

"I'm not allowed to testify. I'm under a gag order. I guess, right?" Trump told reporters at the end of court on Thursday. "I'm not allowed to testify, because this judge, who's totally conflicted, has me under an unconstitutional gag order."

Trump has continued to claim the gag order infringes on his First Amendment right, however Kirschner said that this isn't true.

"Courts have made clear that judges have the authority to sort of preserve the due administration of justice by restricting speech that would interfere in the fairness of a trial," Kirschner told Newsweek via telephone on Sunday. "It's kind of a bedrock principle that does not violate the First Amendment."

On Friday, Trump corrected himself and told reporters outside the courtroom that the gag order "won't stop me from testifying. The gag order is not for testifying. The gag order stops me from talking about people and responding when they say things about me."

Merchan also confirmed to Trump in court on Friday that he can testify, telling the former president: "I want to stress Mr. Trump that you have the absolute right to testify," according to Newsweek's Katherine Fung who was inside the courtroom.

Will Trump Testify?

Despite Trump telling reporters before the trial began that he would testify and "tell the truth," Kirschner told Newsweek, "I don't think there's a chance in hell he takes the stand with a whole team of prosecutors prepared to cross examine him."

However, if Trump doesn't testify, Kirschner doesn't think Trump will care if the public sees him going back on his word because "his supporters will lock onto whatever version of an explanation that he gives and that's what they will believe."

Kirschner added: "They'll never turn against him and believe, wait a minute, this guy's a great big liar and a hypocrite. They're never going to reach that conclusion, unfortunately."