(NEW YORK) — Donald Trump’s defamation damages trial is scheduled to resume Thursday after a two-day postponement stemming from a courtroom COVID-19 scare. At issue is whether the former president has to pay writer E. Jean Carroll additional damages for defaming her in 2019 when he denied her allegations of sexual abuse.
Originally scheduled to take three days, the trial is now nearing the end of its second week as Trump prepares to possibly testify and the court grapples with COVID concerns.
Here are five questions as the trial heads toward its conclusion.
What happens if multiple jurors have COVID-19?
If multiple jurors call in sick, Judge Lewis Kaplan will likely face a decision to either continue the trial with fewer jurors or extend the trial’s delay until the jurors recover, according to former federal prosecutor Josh Naftalis.
“My expectation with most, if not all, Southern District judges is they would prefer to lose a juror and keep the trial going, than to put it off indefinitely to get back the person who’s sick,” Naftalis told ABC News.
When Judge Kaplan delayed the trial on Monday, he expressed confidence that the trial would continue through any COVID-related delay.
“This Court functioned all the way through the worst of the COVID pandemic. We conducted over a hundred jury trials right through the lockdowns and everything else,” the judge said. “We have gotten through all of that. I’m sure we’ll get through all of this too.”
How many jurors are needed to render a verdict?
Judge Kaplan initially seated nine jurors to hear the defamation trial; however, a jury of six could still render a verdict, according to the Federal Rules of Civil Procedure.
Even though the jury does not include any alternates, having three more jurors than needed gives Kaplan a cushion, according to Nafatlis.
“If you lose a juror, you can keep going as long as you stay with the jury of at least six,” Naftalis said.
However, if the jury loses four members, Kaplan would likely be forced to declare a mistrial in the case, according to Naftalis.
Kaplan would then have to empanel a new jury to restart the case. Depending on the availability of Kaplan, the parties, and the jury pool, that process could begin as early as next week.
Does Trump still plan to testify?
Trump arrived at court on Monday with his regular legal team as well as his two criminal defense lawyers, Todd Blanche and Susan Necheles.
“He was planning to testify,” defense lawyer Alina Habba told Kaplan Monday before court was adjourned due to health concerns.
What happens if Trump defies the judge on the stand?
If Trump takes the stand, his testimony will be heavily restrained by the judge’s pretrial ruling, which determined that — because a jury last year already found Trump liable for sexually abusing Carroll and then defaming her — Trump is barred from arguing that he did not sexually abuse Carroll or that he never met her.
The possibility that Trump violates those rules in the presence of the jury could put Kaplan in a tight spot, according to trial lawyer and ABC News contributor Chris Timmons.
“If you go into court and you disrespect the judge in front of the entire courtroom, you’re going to be held in contempt or at least get warned that you’re on the verge of being held in contempt,” Timmons said.
If Trump defies Kaplan’s orders, Kaplan could strike the testimony from the record and instruct the jury to disregard it, according to Naftalis.
“He will likely try to direct him as to what’s in bounds and out of bounds,” Naftalis said. “If Trump continues to ignore … there would likely be a break outside the presence of the jury where he says, ‘If you continue to do this, I will just end your testimony.'”
If Trump continues to defy the rules, Kaplan could boot Trump from the courtroom — something he threatened to do during last week’s proceedings when Trump was being disruptive.
“Mr. Trump has the right to be present here. That right can be forfeited and it can be forfeited if he is disruptive, which is what has been reported to me,” the judge said last Wednesday after Trump was heard making comments within earshot of the jury. “Mr. Trump, I hope I don’t have to consider excluding you from the trial.”
“I understand you are probably very eager for me to do that,” the judge added, to which Trump threw his up his arms and said, “I would love it, I would love it.”
Could the judge hold Trump in contempt?
If Trump repeatedly violates the orders and instructions of the court, Kaplan could hold the former president in contempt and impose monetary sanctions — but the likelihood that it gets to that point is low, according to Naftalis.
“I think the more likely scenario is the judge says, ‘If you’re not going to abide by the orders of the court, your testimony is over.’ I think that’s more likely than getting to, like, full-out sanctions,” said Naftalis.
“The judge will interrupt them and strike it, and that will end it there,” Naftalis said. “There won’t be an opportunity for Trump to sort of go on and give us a soliloquy.”
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