This is a big week for U.S. President-elect Donald Trump. The champagne glasses won’t be dry and put away before Trump’s lawyers will be arguing a series of pre-trial motions in Low v Trump University, a U.S. class action scheduled to proceed to jury trial in less than three weeks. One of these motions, by Trump’s lawyers, is remarkable, as it seeks to pre-emptively exclude as evidence all “statements by or about Mr. Trump made or publicized while he was running for President of the United States”, on the basis that such statements could be prejudicial to Trump, and are irrelevant. In their responding brief, plaintiffs’ counsel colourfully summarized the motion as follows:

Donald Trump’s dizzying array of objectively false, contradictory, and self-defeating statements have left him so flummoxed he is demanding that the Court create a new category of immunity to protect him from himself.

Background

We have reported previously on the Low class action, as well as about a sibling class action run by the same plaintiff counsel (Cohen v Trump), which is also moving towards trial. Both cases revolve around “Trump University”, a series of real estate investment education programs and live seminars offered from 2007-2010, costing up to $35,000 each. The plaintiffs allege these programs failed to deliver on their advertised promises. Trump is personally named as a defendant in both proceedings, based on allegations that he was heavily involved in the promotion of Trump University, and either approved or personally uttered the false representations at issue. The case is fascinating from a Canadian perspective, both because of Trump’s status as a celebrity / leader of the free world, and also because of the rarity of class action trials in Canada.

The Exclusion Motion

The brief filed by Trump’s lawyers in support of the exclusion motion notes that Trump has been the focus of “perhaps unprecedented” media coverage during his presidential campaign, and expresses concern that the plaintiffs will reference “extraneous” and “irrelevant” statements made during the campaign “in an attempt to inflame and prejudice the jury”. The brief declines to be more specific. The exclusionary order requested by Trump’s lawyers is remarkably broad in scope, and encompasses all “evidence and argument relating to statements made by or about Mr. Trump outside the adjudicative process”, including (but not limited to) campaign speeches, rally speeches and tweets. Trump’s lawyers argue that such statements are irrelevant, “distracting”, and pose a “significant risk” of undue prejudice.

Plaintiffs’ counsel is opposing the motion, as you may have deduced from the excerpt above. They argue that it is impossible to determine the relevance or potential prejudicial impact of such a broad and non-specific category of evidence. While refusing to “outline for Trump” their cross-examination strategy, Plaintiffs’ counsel maintained that statements made during the campaign could be relevant, particularly for dealing with issues of credibility. They also denied that any such evidence would be unfairly prejudicial to Trump.

A Canadian Perspective

The motion brought by Trump’s lawyers makes little sense from a Canadian perspective. First, the breadth and vagueness of the motion would likely make it very difficult for a Canadian court to accept. Rules of admissibility in Canada are similar to those in the United States: evidence must be relevant to be admissible, and its probative value (that is, its tendency to prove or disprove a relevant fact) must outweigh its prejudicial impact (if there is one). As plaintiffs’ counsel noted in arguing against the exclusion motion, it is very difficult to engage in this balancing exercise when the evidence in question is not identified with any precision.

Second, while the vast majority of what Trump has said during the campaign very likely is irrelevant to the issues in the trial, it is likely an overgeneralization to say that nothing Trump has said during the campaign, or that has been said about Trump during the campaign, could possibly be relevant. A witness’s credibility as to the subject matter they are testifying about is always relevant, and one of the most common ways in which a witness’s credibility is tested is by presenting him or her with “prior inconsistent statements” that contradict their current testimony. To the extent that Trump has made statements during the campaign that would tend to contradict his testimony at trial, it would be relevant to his credibility. Until hearing his current testimony, it is impossible to know what previous statements he has made that might be inconsistent. The same is true of other witnesses, who may also have commented about Trump during the campaign, and whose statements would also be captured by the order. Any statements relating to the subject matter of the trial could potentially become relevant. Take, for example, a Trump campaign video on YouTube entitled “Trump University Truth“, in which Trump speaks rapidly into the camera for over three minutes.

This example also illustrates the third curious feature of the motion brought by Trump’s lawyers: Trump’s prior statements about Trump University do not seem to be particularly incriminating. Prior inconsistent statements are most useful when a witness has made a damaging admission outside of court, but then tries to say something more favourable on the stand. Far from making admissions, however, Trump has tended to vigorously defend Trump University on the campaign trail. In fact, Trump’s most damaging comments about Trump University seem to be the ones he made in deposition testimony as part of the adjudicative process (ironically, the one category of evidence that Trump’s lawyers do not seek to exclude).

If the concern is that plaintiffs’ counsel might try to paint Trump as dishonest, generally, by showing that he habitually misstates the facts when discussing unrelated subject matter, then this approach also would not make sense, from a Canadian perspective, for two reasons. First, according to the “collateral evidence rule”, a party that asks a witness about otherwise irrelevant subject matter to test their credibility is not entitled to adduce “collateral” evidence to disprove the witness’s answer; i.e., the witness’s answer has to be accepted as truth, even though it might be demonstrably false. It is therefore not an effective way to test a witness’s credibility, and is usually avoided. Second, Trump’s credibility does not seem to be a significant issue in the Low class action. There are some narrow issues where Trump’s testimony may be important, but the core issues in the proceeding are questions of objective fact that Trump’s testimony should not be necessary to answering. Specifically, whether certain representations were made in Trump University’s advertising; whether those representations were material; and whether those representations were accurate.

From our perspective, the exclusion motion appears to face steep odds.