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"If you go after me..."
Today, Donald Trump issued what can only be construed as a shot across the bow, after the Magistrate Judge Moxila Upadhyaya admonished him during arraignment yesterday that he must not commit any new crimes while on a pre-trial bond—the thing that’s keeping him out of jail before trial—and that efforts to influence or intimidate witnesses, jurors or others involved in the case were illegal.
So, Trump posted this on Truth Social this afternoon.
It couldn’t be more clear that this is a threat to Jack Smith and the prosecutors and investigators involved in the case against him. It’s readily construed as a threat against state court prosecutors like Alvin Bragg in New York and Fani Willis in Georgia and could even be seen as a threat to people like E. Jean Carroll who have the temerity to hold him accountable for civil misconduct.
That’s a threat, made by a defendant in a criminal case, after being warned by a judge that there were consequences for violating conditions of release. Trump may think he can be cute and deny it if confronted. Maybe he’ll use his usual line: it’s just a joke. But we can all see it for what it is.
The special counsel’s office alerted the Judge to the post tonight, as part of its motion seeking a protective order for the discovery materials it will be releasing to Trump in the case. The government wants assurances, in the form of a protective order, that Trump won’t make the discovery materials public.
There is good reason for this. Some of the discovery contains personal identifying information for witnesses. If publicly disclosed, that could put them at risk of doxxing, identity theft or other harm. There is also grand jury testimony from witnesses, who might be put at risk if they find themselves suddenly in the public spotlight. As the government explains in its motion, “If the defendant were to begin issuing public posts using details—or, for example, grand jury transcripts—obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case.”
Prosecutors haven’t asked the court, at least not yet, to revoke Trump’s bond. That, of course, would be a step that would trigger prolonged litigation and possibly delay the trial. That seems to be the one thing Jack Smith is trying to avoid at all costs. He has made strategic decisions, for instance, only indicting Trump and leaving the co-conspirators unindicted, that streamline the process. He clearly wants his trial before the election.
A motion to rescind Trump’s bond based on this one post might not be successful. But he has a history of threatening prosecutors, as well as of making nasty statements about judges and witnesses. It’s more than just the one statement. It wouldn’t be inappropriate to force him to explain why his bond shouldn’t be revoked at this juncture. But Smith is taking the high road, not because he’s showing any special deference to Trump, but because he wants to avoid distraction and keep his case moving towards trial. That’s his clear north star.
The government has to establish that a defendant is a flight risk or a danger to the community in order to detain him in pre-trial custody. The statute that governs release or detention of a defendant pending trial, 18 USC § 3142, permits the court to craft conditions of release that prevent the defendant from endangering the community, if he would present a risk if released without them. At arraignment, the judge imposed the condition specifically authorized by the statute, that Trump’s release was “subject to the condition that the person not commit a Federal, State, or local crime during the period of release.” This is remarkable when you think about it. The former president of the United States presents such a danger to the community that he could not be released without imposing the condition designed to prevent him from harming people.
The statute also permits the judge to impose additional conditions if necessary, so long as they are “the least restrictive further condition, or combination of conditions, that…will reasonably assure the appearance of the person as required and the safety of any other person and the community.” This portion of the statute permits judges to prohibit contact with witnesses, which we’ve seen happen to Trump both in Florida and in this new case in Washington, D.C., again, a remarkable marker of Trump’s demonstrated potential for criminality. If the Judge deems it appropriate, she could add additional conditions to Trump’s release based on this conduct.
Much of the threat Trump presents is his ability to use social media to inflame his base. It only takes one person, hearing Trump’s message as a request for help, to act out in a violent way. After the search at Mar-a-Lago and Trump’s posts condemning law enforcement, an Ohio man, Ricky Shiffer, was killed while attacking an FBI office in response. Trump is on notice that his words provoke people to violence—we’ve seen it a number of times and, of course, on January 6. There is no reason to indulge him further and wait until more tragic violence takes place. The government has now put the Judge on notice of Trump’s actions. While it may be premature to detain him at this point, it’s not premature to demand an explanation of his behavior, to reiterate his conditions of release, and to make sure he understands he now lives in a world where there are consequences for breaking the rules. And then to follow through if Trump can’t comport himself like any other defendant in a criminal case must, if they wish to remain out of custody ahead of their trial.
We’re in this together,