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UPDATE (Oct. 12, 2023, 8:40 a.m. ET): Judge Arthur Engoron on Wednesday clarified that Donald Trump would not have been entitled to a jury trial in his New York civil fraud case even if his attorneys had requested one.
UPDATE (Oct. 3, 2023, 10:16 a.m. ET): This post has been updated to include a statement issued by Donald Trump's lawyer Alina Habba on Tuesday.
While special counsel Jack Smith pushes for a gag order to try and stop Donald Trump from damaging the jury pool in Washington, D.C., one of the things that sticks out in Trump’s civil fraud trial in New York is the lack of any such jury. The judge in that Manhattan case, Arthur Engoron, is the one examining the facts (and the law) in what's known as a bench trial.
The former president called it “very unfair” that he doesn’t have a jury. But Engoron noted when the trial kicked off on Monday that the former president's legal team didn’t even ask for one.
And even if Trump's team had made such a request, it's not clear he would've gotten a jury, anyway, given the nature of what New York Attorney Letitia James is seeking, including what's known as "disgorgement" of financial benefits obtained through fraud. The bottom line is that there can be legal disputes over whether parties are entitled to juries, depending on what's at stake in a given case. And regardless of whether Trump's lawyers had a master plan when they declined to press the issue, it's unclear they would have been successful had they done so.
In a statement on Tuesday, Trump lawyer Alina Habba said a jury trial was never an option in this case:
The Attorney General filed this case under a consumer protection statute that denies the right to a jury. There was never an option to choose a jury trial. It is unfortunate that a jury won’t be able to hear how absurd the merits of this case are and conclude no wrongdoing ever happened.
Of course, it's harder to complain about not having a jury when you don't push for one.
Assuming Trump had a real chance at getting a jury, it's tough to see the legal strategy of confining the matter to the jurist who clearly is not enamored of Trump, his legal team or their arguments, and whom the former president has been verbally attacking throughout the proceedings.
Of course, we don’t yet know how much the judge will ultimately decide Trump owes for his fraudulent business practices, which, it should be stressed, the judge already decided ahead of the trial that Trump and his civil co-defendants engaged in. That settled a big piece of the case against the Trump side before the trial even got started.
But however poorly Trump fares with Engoron, it’s also fair to wonder how much better his odds would be with a jury deciding the case, even if he could have one.