Brian Lehrer: Brian Lehrer on WNYC. Well, today is election day, tomorrow night is the next Republican debate, the presidential election is 52 weeks from today, and you might say former president, and hopefully for him, the next president of the United States, Donald Trump made his latest campaign appearance under oath. Specifically, as you probably know, Trump testified yesterday in the $250 million civil fraud case brought by New York Attorney General Letitia James. In addition to the money at stake is Trump's ability to continue doing business in the state.

Trump has been testing Justice Arthur Engoron's patience since the trial on October 2nd began or began on October 2nd, accusing him and Attorney General James of political bias against him. He certainly continued to do so on the witness stand yesterday. Instead of directly answering questions posed by the prosecution, media outlets who were in the courtroom report Trump rambled about his wealth, the beauty of his properties, and his grievances with the judge and the attorney general in particular. At one point, this prompted Judge Engoron to ask Trump's lawyer, "Can you control your client? This is not a political rally. This is a courtroom."

For Trump, well, even as a defendant, that's probably exactly what it was, a political rally. Joining us now to offer some political and legal analysis on the charges against the former president in this fraud trial in New York is Andrew Weissmann, professor of criminal and national security law at NYU Law School, lead prosecutor in Robert Mueller Special Counsel's Office, and the author of Where Law Ends: Inside the Mueller Investigation, as well as an MSNBC contributor. Professor Weissmann, always great to have you. Welcome back to WNYC.

Andrew Weissmann: So great to be here.

Brian Lehrer: This is a bench trial. Let me start there with you. This may be a little wonky for people, but I think it really matters. Can you remind us, again, of what that means, and why Trump was there in court demanding a jury trial, but that he doesn't have the right to one?

Andrew Weissmann: Sure. This is a civil case, not a criminal case. It's in state court, not in federal court. There's seven causes of action. One cause of action has already been decided by the judge with respect to liability. The trial that we're all following has to do with damages as to the first cause of action and liability, and if liability is found, damages with respect to the remaining six causes of action. There are two reasons why there isn't a jury trial.

First, Donald Trump did not ask for a jury trial. When you are a party, you have a form that you can check off whether you're demanding a jury trial or not, and he did not ask for one. The second reason is he was unlikely to get one. I think he still should have asked for it and litigated it, but one of the reasons he was unlikely to get it, and this is wonky, is when you are seeking what's called equitable relief, which is what the plaintiffs, the state, are seeking here, which is just disgorgement, but not what's called damages. For equitable relief, under state law, you're not entitled to a jury. It can be decided by a judge. Because of the nature of the relief that the state is seeking, it would be very unlikely that they would have gotten a jury trial. Judge Engoron, who is overseeing this case, said as much at the outset of this trial.

Brian Lehrer: Listeners, any questions about Trump's appearance on the witness stand yesterday, which has been widely covered by the press, but the implications are pretty far and wide. Potentially there are political implications, there are legal implications, there are implications for his personal finances, for his company being able to continue to do business in the state. Maybe precedents are going to be set here about how much fraud in valuing your properties when you're trying to get bank loans and things like that compared to what you're telling the IRS you're worth, how much of that is tolerated by various government entities.

Who has a question for Andrew Weissmann? 212-433-WNYC, 212-433-9692, call or text. I guess the context then now that we've established that this is a bench trial, the judge has all the power here, no jury, and there was Trump on the stand insulting the judge over and over and over again, generally not smart when somebody has the ultimate power over you in the case, but maybe it wasn't about that for Donald Trump. Maybe this was all a vehicle for his reelection campaign.

Andrew Weissmann: Well, I think there's no question that he was not playing to the audience inside that courtroom for the reasons you said, Brian. The trier of fact is the judge, so insulting the judge not attack that you take if you're trying to convince the judge on the facts or the law, but I think he was playing to his base and playing the victim card and all of those well trod arguments that have been made about how he conducts himself politically. I think there's a way in which his histrionics and behavior, I think, really hurt him at the trial.

Even leaving apart this substantive answers he gave, just take the first cause of action where the judge has to decide the remedy. Where you have a defendant on the stand who is showing no remorse, who is embracing the bad, who is saying, essentially, I'll do it all over again. This is a judge who has to decide, among other things, whether Donald Trump and his businesses should be permitted to continue to do business in the State of New York. Where you have someone who is so unrepentant and is displaying that contempt for the rule of law and for the rules of this state, you can easily imagine Judge Engoron factoring that in and writing about that in his decision about the remedies that he's going to impose.

Brian Lehrer: Hal in Manhattan wants to ask a question that I think Trump himself asked in the courtroom yesterday in the context of one of his answers. Hal, you are on WNYC. You get to do it. Hi.

Hal: Great. When I applied for my mortgage, I put down the value because the banks do their due diligence with the comparables of what the property is worth. What does it matter what I say it's worth? It's what the value the bank determines. They do their due diligence. I don't understand what's any different with Trump saying his property is worth a billion or 100 billion. The banks do their due diligence, the most sophisticated investor in the world.

Brian Lehrer: Hal, thank you. Trump did bring this up in court explicitly yesterday, didn't he? I think he called it the worthless clause, meaning whatever my declaration of my property's worth is it's worthless because the banks are supposed to do their due diligence and come up with their numbers before deciding whether to loan me money.

Andrew Weissmann: Yes. There are a couple of responses to that. One, if you look at the actual clause, the actual clause in the financial statements says the following. It doesn't say I can submit fake financial statements, it doesn't say I can deliberately mislead you. What it says is when it comes to the part of these financial statements, and I'm just paraphrasing, that deals with appraisals, essentially, we're giving you our best information and our good faith assessment, but appraisals can be subjective. It's important to understand that and to do your own due diligence as to what we are representing.

That does, as the caller said, put some obligation on the financial institution as a warning, but it's not like it says, "Oh, by the way, you can't rely on this." In fact, Donald Trump, I thought, particularly, I think, the worst admission that he made said, "I understood that these financial statements were there because they would induce the bank to give me a loan." Just remember, those financial statements are not just about appraisals. They're also about the amount of cash that you have on hand, how your businesses are doing, things that are uniquely within the knowledge of the Trump Organization. It's not just an appraisal of an external building that the bank could do as well.

In many ways I viewed that clause as something that was quite damaging to Donald Trump, because if your view is, "Oh, I interpreted that clause to mean I could intentionally lie," that just means why even bother giving financial statements. To me, it suggested a stratagem of we're going to say whatever the hell we want. Because we put this clause here, we have plausible deniability. The judge has already ruled on that issue, that that is not the intent of that language. That's not the language said in the clause, that's in the submission that goes to the banks and the insurance companies.

Brian Lehrer: Related to that, Trump says, "There was no victim in this case. Why am I even being sued?" By no victim, I guess he means no bank lost any money on his valuations of the properties, even if they were fraudulent.

Andrew Weissmann: I think there are two answers to that, a legal and a factual one. Legally, you can't intentionally mislead somebody and then say, "But ultimately they weren't hurt." It's still improper, both civilly and criminally to do that. Legally, reliance is not something that the state has to prove. Factually, the state has put on evidence that it's simply not factually true. They had an expert testify. Obviously, it remains to be seen whether Judge Engoron will credit the expert testimony. The nature of the financial statements and whether they're misleading goes to two issues. One, would the banks have ever lent money? Two, even if they would've lent money to Trump and his organizations, depending on what the risk is, you would charge very different amounts.

The expert talked about the tens and tens of millions of dollars that would've been sought by the banks to give out a loan. This is common sense to, I think, listeners, which is the riskier you are, the more the bank will say, "You know what? I'm going to lend you the money, but the rate's going to be higher." Obviously, Donald Trump is not riskless. He has gone into bankruptcy over and over again. The nature of the financial statements and his worth and how his companies were doing was something that the expert said would be very relevant to the banks in deciding what the rate would be. It's both legally irrelevant, but also factually, just not true that there wasn't any harm here to a victim.

Brian Lehrer: Listener texts, "Isn't the point that he under-reported to the state thereby undervaluing his taxes? The bank overvaluing is beside the point. The victim is the state who received less than they should have." Is that at all at issue here because that's the other side of the coin as we think about it, out of court, he was overvaluing to the banks. He was undervaluing perhaps to the government with respect to what his tax bill would be. Is the tax bill at issue here at all?

Andrew Weissmann: I don't believe it is. I think what is at issue for the state and was found with respect to the first cause of action, is the attorney general is charged with protecting New Yorkers. It's a state case in New York, and is trying to say, if there is a company, regardless of whether it was intentional or not, that is operating in a way that it hurts the citizens of this state, then they have a right to step in and an obligation to step in.

Submitting false, misleading financial statements, engaging in fraud of financial institutions are all things that are obviously important to the state. This is where Wall Street is, and so it's something that everyone should be operating above board. As I said, that is something that the judge will be considering in determining the remedy with respect to the first cause of action. Then ultimately, you may be considering that if he finds liability with respect to the remaining causes of action what the remedy should be there for those causes of action as well.

Brian Lehrer: Peter in Brooklyn, you're on WNYC with Andrew Weissmann. Hi, Peter.

Peter: Hey, how are you? I was under the impression that Justice Engoron had taken, I can't remember the term of art, the business certificates, I think, necessary to operate in New York, and that that was reversed by, I guess, the intermediary court,. If that's so, does your guest know the basis for that?

Andrew Weissmann: I think your terms of art are pretty accurate. Essentially what the appellate court did is say, "Let's just put this on hold right now. Finish the trial. Let's have the conclusion of that, then make your decision about the remedy." Essentially it's a way of saying-- the appellate court was saying, "Let's hold the status quo and not do anything irrevocable or that could cause damage now until the appellate court has a chance to hear the whole case."

That seemed like a pretty wise decision so that the Court of Appeals and the appellate court will have the full record, because of course, Judge Engoron is at the trial level, although it's called the Supreme Court, that is the lowest level in New York. This is basically allowing the appellate court to see everything, because they are allowed to second guess the trial court to make sure they agree with his decisions on the law and whether he abused his discretion with respect to the facts.

Brian Lehrer: Peter, I hope that's clear. Maybe related to that, listener texts, "Could Trump's behavior be a ploy to anger the judge so that he reacts badly and the judge's behavior can be used on appeal?"

Andrew Weissmann: I clerked for a judge who constantly was saying that that was definitely a tactic that is used by counsel, which is to try and go the judge to lose their temper and say things. I think Judge Engoron has done a very good job of holding his fire. I think that Donald Trump attacking a law clerk is not going to sit well with any judge, appellate judge, trial judge. It's so beyond the pale. It's just not done. There's no reason to do it any more than having a photo with a baseball bat, with a picture of the Manhattan District Attorney, or attacking the family members of prosecutors and judges. Yes, he could be trying to do that, but I don't think that is going to be a particularly fruitful avenue to help them on appeal.

Brian Lehrer: You're a legal analyst, but I want to ask you a political question and see if you want to take it on. This is happening at the same time as new polls by The New York Times and Siena College found that President Biden is trailing Trump in five of the six most important battleground states. Trump brought this and a new CBS poll up yesterday after his testimony while speaking to reporters. Here's 15 seconds.

Trump: These are all political opponent attack ads by the Biden administration. Their poll numbers are terrible. You saw what happened today. The New York Times and CBS came out with a poll that I'm leading all over the place, but it's a very unfair situation.

Brian Lehrer: The Times/Siena Poll shows that nearly twice as many voters said economic issues would determine their vote next year compared with social issues such as abortion or guns. Those economic issues favored Trump among the voters polled by a landslide 60% to 32%. Obviously, the polls this far out from the election are not determinative. The economy is improving despite the fact that voters disagree at this moment. Anything you want to say about that poll or tie it into this case, or Trump talking about that as if the case was an attack ad by Biden if that's what he was trying to say.

Andrew Weissmann: Sure. As you noted, I try to stay in my lane. I don't have any particular expertise on the political side. I try and stay focused on legal cases. I do think that there's, obviously, a relationship to them. It would be very interesting depending on the judge's findings here because this case could go very much to Donald Trump's brand. I think there's a reason that Donald Trump has appeared and attended this case when he has not attended the sexual assault and rape case. He has not attended hearings in his criminal cases. This very much goes, I think, to his identity as at least a former New Yorker and where he grew up and his businesses, because it's really going to the heart of whether his businesses were entirely legit.

Remember, the Trump organizations, two of them have already been criminally convicted last year by a jury, so this is a follow-on to that. It'll be interesting to see whether the conclusion here in any way informs or shapes the public discourse. The final point I'd make is it does make it important, I think, to have cameras in the courtroom. I know federally that is not possible without the blessing of the Chief Justice of the Supreme Court, but in Georgia, it is the norm and it is at times permissible in New York.

Brian Lehrer: Let's see what happens in-- Yes. Those posts did find, one of them, that it may matter to voters if Trump is actually convicted of a crime. We will see. Andrew Weissmann from NYU, and MSNBC and author of Where Law Ends: Inside the Mueller Investigation. Thank you very much.

Andrew Weissmann: You're welcome. Thanks for having me.

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