Shouldn't A President Be Able To Follow Obviously Correct Advice?

(Photo by David Becker/Getty Images)

Do we really want to elect as president someone who can’t heed manifestly correct advice?

It’s easy to minimize the damage award in a defamation case. Any lawyer can tell you how to do it.

Here’s proof: Two weeks ago, even I, in this column, explained how Donald Trump could minimize the damage award in the defamation lawsuit brought by E. Jean Carroll.

I concede that Trump could not have avoided the first mistake that led to the $83.3 million damage award. Trump was defending two cases at the same time.  In the business fraud case brought by Letitia James, it was in Trump’s interest to assert that he was rich: No bank could have been harmed by misstatements in Trump’s financial statements because Trump wouldn’t conceivably default on his loans; he was richer than Croesus.

Simultaneously, in the defamation case brought by Carroll, it was in Trump’s interest to assert that he was poor: Even if Trump defamed her, he is terribly poor, so even a tiny award of punitive damages would hurt Trump and deter him from repeating his misconduct.

A single litigant can’t take both of those positions simultaneously. Trump took the position that he was rich; he paid the price in the defamation case.

That’s one problem with being a defendant in multiple cases at the same time: Positions that you take in one case may hurt you in others, and there’s no way to avoid that dilemma. I suspect that Trump will experience this problem repeatedly over the course of the next year as he simultaneously defends four criminal cases.

We’ll see.

The other errors that Trump made during the Carroll trial, however, were unforced ones. Any competent lawyer understood what Trump had to do to minimize damages in the defamation case. Intelligent commentators (and me, too) were saying these things publicly. Trump must have heard the advice. He simply refused, or was psychologically unable, to obey that manifestly correct advice.

What am I thinking of?

First, don’t go out of your way to annoy the decision-maker.

I think I could explain the logic of this to any intelligent 5-year-old: If someone is passing judgment on you, don’t cause that person to hate you.

Trump surely heard this advice. He didn’t — or couldn’t, because of his personality — obey it.

During trial, Trump took to social media to insult the presiding judge. Trump interfered with the trial, whispering loudly to counsel, scowling when witnesses testified to things he didn’t like, and fighting with the judge.

Trump didn’t just antagonize the judge. He also antagonized the jury by, for example, standing up and storming out of the courtroom when Roberta Kaplan was giving her closing argument for the plaintiff. That’s rude and insulting; do you think the jury didn’t notice?

Trump was surely told not antagonize the decision-maker. But he couldn’t resist, so he ignored the advice.

(Protip: If you’re ever trying a case, and a witness is giving devastating testimony against your client, show no emotion whatsoever. If you’re sitting at counsel table shaking your head, scowling, and furiously passing notes to co-counsel, the jury will realize that the witness is saying something important. The jury will thus pay increased attention to the testimony. If you want the jury to pay less attention to the devastating testimony, sit back in your chair, smile, and relax. Nothing to see here!)

What else could Trump obviously have done to minimize the damage award at trial?

In a defamation case, don’t repeat the defamatory statements out of court during breaks in the trial.

This might be hard to explain to a 5-year-old. But I bet I could explain it to an 8-year-old. And Trump’s lawyers surely gave Trump this advice.

If you’re being sued for defamation, you want to minimize the number of defamatory statements that you make. And you want the jury to infer that even a tiny damage award would convince you to stop repeating the defamation. Only a moron would intentionally leave the courthouse and repeat the defamation, saying, and posting on social media, that he’d never met Carroll and that she was a liar.

How’s this for a political slogan: Make America Moronic Again!

I need a red hat.

Here’s one last thing Trump could have done to minimize the award of damages at trial: Be apologetic on the witness stand. At the Carroll trial, the jury was going to be instructed that Trump had sexually assaulted her and that his statements denying this were defamatory. Since Trump knew he was going to lose, the name of the game was to minimize the damage award: “E. Jean Carroll is a brilliant advice columnist and a beautiful woman. I’m terribly sorry if I ever hurt her. I wish her only the best.”

I know those would be hard words for Trump to swallow, and even harder for him to speak, but they could have reduced the punitive damage award by tens of millions of dollars.

For 10 million or 20 million bucks, the average guy would say damn near anything you asked him to.

But Trump couldn’t do it.

He’s unable to heed advice that’s inconsistent with his personality.

My point, however, is not merely legal. It’s also political.

Do we really want to elect as president someone whose personality keeps him from heeding manifestly correct advice?

Any advisor worth his salt could have told Trump not to publicly threaten nuclear war with North Korea: The president should not say that his “nuclear button” is “a much bigger and more powerful one” than Kim Jong Un’s.

Likewise, any advisor worth his salt could have told Trump not to threaten withholding aid to Ukraine unless it opened an investigation into Joe Biden.

Trump couldn’t do it.

All Trump had to do was follow self-evidently correct advice, and he could have saved himself a lot of angst.

In the years 2024 to 2028, I bet many other situations will arise where subtlety, tact, or silence better serve the nation than bluster. In our dealings with Taiwan, for example, it may well make sense to arm Taiwan with high-tech weapons, give Taiwan advice about how to hack mainland China’s electricity grid, and so on, while publicly remaining silent. We shouldn’t publicly support the cause of Taiwanese independence, which might infuriate China, or publicly repudiate the cause, which might prompt mainland China to attack the island (because China assumes the U.S. would no longer defend it).

Subtlety and silence may well be the best course.

I’m confident that the national interest occasionally requires the president to deliver a (figurative) hot blast on behalf of the country. We want a president who has the capacity to give stern messages when required.

But the national interest also occasionally requires a president to exhibit humility or tact, subtlety or silence. A president should have the full spectrum of human feelings in his (or her) emotional repertoire.

What are the odds that Trump would listen to an advisor who, obviously correctly, advocated subtlety and silence?

I prefer a president who’s able to do what’s right for America, rather than what’s right for self-aggrandizement.

Trump’s inability to obey obviously correct advice, because his personality won’t allow it, is not just a legal problem.  It could also become a national problem.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.