Trump’s Threat And The Remedy

Not that anyone, absolutely anyone, was surprised by the complete lack of impulse control. Presumably, his attorneys cautioned him against any public outburst that would either admit guilt or, worse yet, give the government even further ammunition to seek sanctions in the interim, which was summarily ignored by the worst criminal defense client ever. But damn, who could have imagined that even Donald Trump would be stupid enough to post this.

Unsurprisingly, the government learned of this “truth” and did not think it was nearly as funny or manly as others. The government swiftly notified Judge Tanya Chutkan.

The prosecutors said Trump’s post raised concerns that he might improperly share evidence in the case on his social media account and they urged that he be ordered to keep any evidence prosecutors turn over to his defense team from public view.

“All the proposed order seeks to prevent is the improper dissemination or use of discovery materials, including to the public,” Gaston and Windom wrote. “Such a restriction is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him. … And in recent days, regarding this case, the defendant has issued multiple posts—either specifically or by implication—including the following, which the defendant posted just hours ago.”

While concerns about Trump revealing discovery that he was ordered not to disclose publicly was certainly obvious from the outset, the threat set forth in Trump’s post seems to be of an entirely different nature and yet the order sought by the government neither mentions it nor seeks a remedy for it. Not that it needs much by way of explanation, but his post clearly threatens prosecutors and witnesses against him.

And yet, nothing in the government’s request seems to address the obvious witness intimidation.

Trump’s Truth Social post came just one day after he swore in federal court that he would not make any effort to influence or retaliate against witnesses or make any other actions that might obstruct the administration of justice in his case. Asked by a magistrate judge on Tuesday to verify that he would comply with that instruction, Trump acknowledged it and said that he would.

The Truth Social post made no specific reference to any witnesses or court personnel, but Trump has often used his social media megaphone to attack prosecutors and judges in the criminal cases he is facing.

Had any other defendant ever in the history of the legal system made such a threat, particularly anyone who has a demonstrated inclination to attack his detractors and tell his sycophants to take action against his enemies, the government would demand his immediate detention. There would be a superseding indictment with an obstruction of justice count. And no federal judge would hesitate to detain a criminal defendant who threatened either prosecutors, witnesses or, potentially, the judge.

Here, the government wasn’t even inclined to seek a gag order precluding Trump from posting about the case in light of this threat.

Smith’s office has not sought a gag order in either of the criminal cases it is pursuing against Trump: one in Florida focused on his retention of classified documents and the other in Washington over his efforts to interfere with the certification of the 2020 presidential election. The filing Friday night does not make any request to bar Trump or his attorneys from discussing the D.C. case publicly or with the media.

The prosecutions are already replete with special treatment for Trump, accommodations that no other criminal defendant would ever be given. To some extent, it’s understandable given that no other criminal defendant is a former president or current candidate for the Republican nomination for president, enjoying the protection of the Secret Service and the adoration of a great many people of dubious sanity. But threats cross a line that neither the government nor court should ignore. Not even when the defendant is Trump.

Presumably, Smith is trying hard not to create an explosive political scene by asking the Court to take action against Trump for making threats. The situation is volatile enough already, and why toss a bomb into the middle? And what are the chances the judge would remand Trump, no matter what he says or whom he threatens?

Yet, for the same reasons that Trump, by dint of being an ex-president, is not relieved of the duty imposed on every American not to commit crimes, he should not be permitted to threaten prosecutors or witnesses. The lack of impulse control that led to his “I’m coming after you” (but in all caps) “truth” will either give rise to some deterrence or he will be emboldened to continue to make threats, continue to do whatever idiocy pops into his head.

Smith may be willing to wait until something hits the fan before going all in on sanctions to put this conduct to an end, but will he wait until some nutjob pops Mark Meadows or Cassidy Hutchinson to fulfill the wettest dream of their cult leader? This can be stopped immediately or it can be tolerated until something really bad happens. No other defendant would be given that latitude. Neither should this defendant.


10 thoughts on “Trump’s Threat And The Remedy

  1. Chris Van Wagner

    Query: If the prosecutor feels he “must” treat an accused with kid gloves for the reasons surmised, must a judge also sit by silently in a state of repose? Say the judge reads this blog. Then the judge looks at the post itself. Would and could the judge summon the accused for a hearing on the matter? Of course. And then there’s the pretrial services officer tasked with supervising the accused while on pretrial release. They could submit a violation report as well and request a hearing. None of this seems likely but …. that means there are a new set of rules. This is a difficult situation brought on by a difficult defendant.

  2. Henry Berry

    But isn’t Trump’s statement more or less what is commonly understood and widely practiced in nearly every legal case. What I get out of it is that he is going to defend himself vigorously. No surprise here. Such venomous, spiteful, or whatever you want to call it disposition, which may even become a strategy in cases, is the rule in for instance, cases involving police officers, divorcing couples, and cases based on sexual accusations. in my view, Trump is expressing what most people involved in acrimonious legal contests are meaning to and in fact do employ.

  3. mike p

    Smith knows exactly what he’s doing. By applying pressure here and there, Trump will become ever more stressed and will soon order his supporters to react with violence once again. At that point Trump will be taken into custody.

  4. Jake

    From Smith’s pov, wouldn’t the decision to issue a gag be a decision to shut off the best and ongoing source of inculpatory evidence?

  5. Mark Daniel Myers

    I’m waiting for B. McLeod’s comment, similar to those on two other recent posts, that Trump’s stochastic terrorism didn’t work so it’s not actually a problem.

    Even though it’s not over yet, and there’s plenty of time for that to change.

Comments are closed.