Defendants should be 'scared to death' of making the statements Trump is posting: legal expert

Donald Trump’s use of incendiary rhetoric is nothing new – it started long before the former president’s arraignment earlier this month in the Jan. 6 election conspiracy case.

But Trump signed a pretrial release form that, at least on paper, should have eliminated the possibility that the former president’s propensity for trying to intimidate anyone standing in his way would be a factor in his legal proceeding.

And, after doing so, any defendant would be "scared to death" of violating it in the way Trump is, legal experts said Monday.

Trump in his release form agreed that it would be a crime to “intimidate or attempt to intimidate a witness, victim, juror, informant, or officer of the court.”

Less than two weeks after Trump agreed to those terms of the pretrial release, it remains an open question how far the former president can take his rhetoric, and whether anyone can stop him, The Washington Post reports.

Trump began testing those limits almost immediately.

The day after his arraignment, Trump on Aug. 4 wrote on his Truth Social website “IF YOU GO AFTER ME, I’M COMING AFTER YOU.”

Trump two days later he posted disparaging remarks about Judge Tanya Chutkan, who is presiding over the Jan. 6 case, and the Washington D.C. community, his prospective jury pool.

“THERE IS NO WAY I CAN GET A FAIR TRIAL WITH THE JUDGE “ASSIGNED” TO THE RIDICULOUS FREEDOM OF SPEECH/FAIR ELECTIONS CASE. EVERYBODY KNOWS THIS, AND SO DOES SHE! WE WILL BE IMMEDIATELY ASKING FOR RECUSAL OF THIS JUDGE ON VERY POWERFUL GROUNDS, AND LIKEWISE FOR VENUE CHANGE, OUT IF D.C.,” Trump wrote.

Trump took aim at special counsel Jack Smith the next day.

“Deranged Jack Smith is going before his number one draft pick, the Judge of his “dreams” (WHO MUST BE RECUSED!), in an attempt to take away my FIRST AMENDMENT RIGHTS - This, despite the fact that he, the DOJ, and his many Thug prosecutors, are illegally leaking, everything and anything, to the Fake News Media!!!” the former president posted.

The torrent of incendiary posts has continued through Monday, when Trump on his Truth Social website accused President Joe Biden of indicting him in his latest fiery post.

“I just hope Republicans, and the people of our now failing Nation, see what is happening to our Democracy and Freedom. A sitting President has INDICTED, in many different forms and locals, his political opponent, who is substantially leading him in the Polls,” Trump wrote.

“NOTHING LIKE THIS HAS EVER HAPPENED BEFORE. OUR COUNTRY CAN NEVER LET THIS STAND!”

Trump’s post followed a series of social media posts that began early Monday morning, one of which targeted Judge Tanya Chutkan, who is presiding over Trump’s Jan. 6 election interference case.

“The following TRUTH is a quote by highly partisan Judge Tanya Chutkan, angrily sentencing a J-6er in October of 2022. She obviously wants me behind bars. VERY BIASED & UNFAIR!” Trump wrote.

Aaron Blake writes for The Post that the “question, as it often is with Trump, is whether he has gone too far — and where the line is for those charged with determining where it is.”

“Experts say the situation could be coming to a head.”

Ohio State University law professor Joshua Dressler told The Post that Trump’s statements “could be interpreted as an attempt to intimidate Judge Chutkan” but Dressler suggested Chutkan finding Trump to be in violation of the order would be unlikely, partly because it make her the focus of the case.

“Beyond that, an attempt to intimidate requires proof that the actor (here, Trump) had the specific intent to intimidate,” Dressler said. “Trump, of course, can say that he is merely expressing his negative views about her, which he has every right to do, and that he is not attempting to intimidate her.”

Former federal prosecutor Peter Zeidenberg told The Post that said Trump’s situation is unique because defendants are “normally scared to death about being preventively detained.”

Blake notes that Trump has made his free speech the center of his public defense, and that limiting his right to speak freely could fuel his narrative.

“I would not be surprised for a hearing to be called by Judge Chutkan … in which she really admonishes Trump to his face,” Zeidenberg said “After that, it is anyone’s guess how this could escalate.”

MSNBC reports that Willis could bring witness tampering charges against Trump as evidence of the former president’s “pattern and practice” in a RICO prosecution.

“She can use it as evidence to show that this is part of the former president's pattern and practice in a RICO prosecution, when he attempted to interfere with the election, if those are the charges she brings,” Former federal prosecutor Paul Charlton told MSNBC.

“She can also talk about how it is he attempted to interfere with the appearance of a witness who had received a lawful subpoena.”

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