Trump’s Criminal Prosecutions, his Social Media Posts, and the Importance of Staying Off Ledges

(I posted portions of this on Tuesday, August 9)

In 2021 and 2022, I worried that the “Indict Trump Now” people had an unrealistic sense of what a criminal trial is actually like. For example, this person told me:

So about a year ago, I wrote this:

The “indict him right now!” chants are premised on a misunderstanding of what an indictment actually is. An indictment is a formal accusation. It is the start of a long, harrowing process. The judge will make rulings that you will disagree with. Court and juries don’t always get it right.

Here is the thing about litigation: Both sides often end up feeling like they lost because, generally, neither side gets everything it wants.

Now, here we are. Three criminal indictments have been filed against Trump and another is expected. We are in the pre-trial phase moving toward what is very likely the most important criminal trial in our nation’s history. Merrick Garland, through 2021 and 2022, continually said “We have to get this right.” That goes for us, too. We have to get this right. We have to help our friends, family, and neighbors understand what is happening.

Part of the problem is that our criminal justice system has grown mind-bogglingly complex

I, therefore, updated my Criminal Law FAQ page. Among other things, I explain why our criminal justice system is complex. It’s a long blog post. So grab your favorite warm beverage, find a comfy chair, and settle in. If you read it recently, no need to read it again. You might want to read it again if it’s been a while, particularly if you feel inclined to say any of the following:

• Trump is getting special treatment!
• He never faces any real consequences!
• The fact that everything takes so long shows that the system is hopelessly broken!

You can find it here. I’ll put the link at the end of this piece as well.

Part of the problem is that we are currently in an information disruption

A quick review of reflectors, entertainers, poppers, and internet triggers.

In the old days, people got their news from a newspaper or half-hour evening news program. We are now in a 24-7 media cycle. Cable shows have hours of time to fill. Outlets compete for clicks. As a result, droplets of facts get lost in a cascade of speculation and opinion.

Reflectors and Entertainers

Peter Arnella, a professor of criminal law at UCLA, who commented on the O.J. Simpson trials for ABC, was one of the first “TV Lawyers.” He quit the “profession” of TV Lawyering when he realized that:

Today’s pundits often act as appeasers instead of educators. They reflect back and reinforce the views of the audience, thereby entertaining their audiences instead of educating them, and thereby misleading them.

Instead of educating the public, far too much televised legal commentary simply serves as a mirror that reflects back to its particular audience what it already believes.

The above is from a 1998 piece entitled The Perils of Legal Punditry which appeared in the University of Chicago Legal Forum.

To quote Timothy Snyder, when news becomes entertainment, what matters is who puts on the best show. The truth gets lost.

Poppers

Poppers are well-respected legal authorities who have a great deal of knowledge and expertise, who nonetheless pop off the tops of their heads about something they haven’t researched or is outside of their area of expertise.

The problem is that it doesn’t matter what they say. Anything that pops out of their mouths is taken as some kind of gospel, which feeds their egos and encourages them to continue popping. As my contracts professor once said about judges: “When your ass is kissed that often, you run the danger of thinking it is holy.”

Rage Peddlers

In a 60 Minutes interview, Facebook whistleblower Francis Haugen explained that “angry, polarizing, divisive content” gets wider distribution and more engagement. It’s fun to be popular and as Fox learned a long time ago, the way to hook an audience is to stoke rage and fear.

Internet Triggers

In this video, Snyder talks about “Internet triggers,” which he defines as something a person saw on the Internet, felt triggered by, and is now repeating:

He talked about how dangerous these Internet Triggers are for democracy because they prevent us from thinking complex thoughts. Snyder finds this terrifying because democracy depends on us having “some sense of time beyond our immediate outrage.”

Think about that phrase: A sense of time beyond our immediate outrage.

I have often called these rage-inducing simplifications because they generally take a complex situation and reduce it down to something simple and rage-inducing.

Another indictment is expected this week

Anna Bower and law professor Anthony Michael Kreis in Atlanta have been closely following the grand jury proceedings there. They are predicting that we will see indictments for election interference in Georgia this week. Specifically, they predict Tuesday.

Trump’s rantings on social media about a witch hunt in Georgia for a perfect phone call would seem to confirm this.

Can anyone think of a similar instance of a single person indicted across multiple jurisdictions (New York, GA, South Florida, DC)?

Or is Trump the Winner of Indictments?

Find me in the fediverse

I will try to do a mid-week blog post on the indictment, but I will be on vacation with family. I’m sure they won’t mind if I sneak away to read the indictment. I may not get my Over the Cliff Notes onto my blog as quickly as usual, but I will have social media explainer sooner. You can find it here. (If you don’t know what the fediverse is, see this post.)

Now it’s time for Fun with Criminal Procedure 🤓

First a Note: Most communication with the court (known as “briefing”) looks like this:

(4) Either the court holds a hearing or simply issues an order.

The Mar-a-Lago case (stolen documents case) The United States v. Trump and Nauta

Does Nauta’s lawyer have a conflict of interest? (Remember: Nauta is Trump’s co-conspirator.)

A conflict of interest refers to the ethical problems that may arise between parties with a preexisting relationship. In law, a conflict of interest arises between an attorney and a client if the interests of the attorney, a different client, or a third-party conflict with the interests of the present client.

Special Counsel filed a motion suggesting that there is a potential conflict because Nauta’s lawyer, Stanley Woodward previously represented 3 witnesses who he may have to cross-examine at trial. 

This is a problem because if a lawyer cross-examines a former or current client, one of these might happen:

1. 1. the lawyer might improperly disclose client confidences (thereby harming his former client), or
   2. the lawyer treats the witness gently, either to protect the former client’s confidences or to advance the lawyer’s personal interest.

The DOJ requested what is called a “Garcia Hearing,” which is a hearing to determine whether a defendant might be harmed by a lawyer’s potential conflict of interest. The DOJ also wanted to file documents under seal to show why they believed Woodward had a conflict of interest.

Aileen Cannon, the judge, responded by

• denying the DOJ’s request to file documents under seal to explain the conflict of interest
• ordering Nauta to respond to the DOJ’s request for a Garcia hearing by August 17.
• ordering Nauta to address “the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.”
• Then she wants the DOJ to reply to Nauta’s filing by August 23.

(The DOJ previously said that grand juries in both D.C. and Florida are continuing to investigate this case.)

What is going on? It seems like she is encouraging Nauta to challenge something about the out-of-state jury but it isn’t clear. Basically, we have to wait and see where this goes. (For a more complete guide about what we are waiting to see, this Lawfare piece is good.)

The J6 Attempt to Overturn the Election Case

Here is the chronology of what happened this past week:

Monday, August 7: Team Trump filed the required Response to the DOJ’s proposed protective order. It’s here. 

No surprise, Trump wants a less restrictive order. Specifically, he wanted things that were not marked “sensitive” excluded from the order.

Monday, August 7: The DOJ filed its reply.

Friday, August 11: The hearing was held.

Trump’s Social Media Postings

Trump posted this:

IF YOU COME AFTER ME I WILL COME AFTER YOU.

Within hours, the DOJ submitted the request for a protective order. They were planning to do this anyway. It is routine. This was not in response to Trump’s postings. Here is how the DOJ worked Trump’s social media post into their request for a protective order (emphasis added):

The Government’s proposed order is consistent with other such orders commonly used in this District and is not overly restrictive. It allows the defendant prompt and effective use of discovery materials in connection with his defense, including by showing discovery materials to witnesses who also agree to abide by the order’s terms. All the proposed order seeks to prevent is the improper dissemination or use of discovery materials, including to the public. 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:

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.

See what the DOJ did? On the surface, they were saying, “Look at Trump’s post. This is why it’s super important that we have an order protecting sensitive grand jury materials.”

But really they were saying this: “This is what we are dealing with, Your Honor. An unhinged nut.” But they did it in the cool, collected voice of the adult in the room dealing with a manbaby.

(Reportedly Team Trump was furious that the DOJ immediately ran to show this post to the judge.)

 

Is he lying? Well, of course. But see how he gave himself deniability? See how he muddied the waters?

Then, to my surprise, social media erupted with cries of LOCK HIM UP.  When I asked on what grounds Trump should be locked up, I got responses like this:

He is violating the terms of his release

Thinking I missed something, I went back to review: He was told not to violate laws, he must appear in court as required, he must sign an appearance bond, and he must not communicate the facts of the case with anyone Trump knows to be a witness, except through counsel or in the presence of counsel.

On social media, I posted: “I don’t see how he violated these terms.” The response I got:

He committed a crime! Witness intimidation!

So I did the analysis. Here is how criminal law works. To figure out if a person committed a crime, you look up the statute and break it into elements. Each crime has several elements, at the very least, each has a mens rea and actus rea requirement. Ordinarily, you need evidence beyond a reasonable doubt, but because Trump is on pre-trial release, thejudge can revoke his release on a showing of probable cause that he committed a new crime. (18 USC 3148.) (h/t BAM on Mastodon)

First, a few observations about the post “IF YOU COME AFTER ME, I AM COMING AFTER YOU.”

1. Trump does not yet have a witness list. Of course, we can all guess who the witnesses are, but nobody knows for sure. This raises the question: Can he threaten a witness before he has been given the witness list?
2. Notice that this post doesn’t name anyone.
3. Here is one way to read his post: he is promising reciprocity: What someone is doing to him, he will do back, which precludes violence unless he is responding to violence. If anything, he is saying, “When I am president, I will prosecute you!” Okay. That’s hot air.
4. Trump is an accomplished mob boss who knows how to say things while giving himself deniability. He is really good at that.

Now, for the legal analysis.

Did the post “If You Come After Me, I am Coming After You” constitute witness intimidation?

This crime has four elements. (Remember, we need evidence for each).

Element 1: Trump knowingly [(used intimidation) (threatened) (corruptly persuaded)] (name of person), (or attempted to do so), (or engaged in misleading conduct toward (name of person));

Trump does not name a person. It seems to me a charge of witness intimidation fails right here.

But the social media post came immediately after he said harsh things about real people.

Now we’re reaching. See why? Also, consider his retraction the next day. Trump says he was talking about his political opponents. You might know he wasn’t. I might know he wasn’t. But he didn’t name anyone and has a strong defense.

Before you feel too frustrated that this isn’t working out how you want, recall that the DOJ, after a careful investigation, charged Trump with 4 felonies related to overthrowing the election. The charges are solid and the evidence is solid and Trump has no defenses.

Now for the next element. This requires that Trump knowingly tried to:

• “induce the testimony” of the person
• or “coerce or induce” the person to withhold testimony
• or  “destroy, mutilate or conceal an object with intent to impair the object’s integrity or availability for use in the proceeding,
• or cause or induce the person to evade legal process summoning the person to appear,
• or cause or induce (name of person) to be absent from an official proceeding to which the person was summoned.

See how specific the requirements are? General language won’t meet the requirement of this statute.

The last two elements require that a specific proceeding is pending and that the proceeding is federal.

My analysis, after I apply the facts to the law, is that this post falls short of witness intimidation.

What would be an appropriate judicial reaction? 

On Tuesday (when I initially posted this) I suggested that this would be the appropriate judicial reaction:

The judge can issue another warning because he is pushing it. At some point, she may order him to explain himself. If he crosses the line into actual witness intimidation after that, she can revoke his release.

I expect Trump to move as close to the line as he can without going over. He wants to keep taunting people. It keeps his enemies riled and his allies stoked.

Here is what I think Trump and his lawyer Lauro are doing and why: Trump wants these criminal proceedings to be about Free Speech (he really, really, does) but . . .

The Charges Against Trump Do Not Have a First Amendment Defense

The DOJ, to make this clear to everyone, put this early in the indictment:

The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.

Of the four charges against Trump, none of them have a First Amendment defense.

TV lawyers can offer knee-jerk responses. Lawyers generating a following on social media can offer knee-jerk responses.

The DOJ and judge cannot do that. They have to look closely at the law and the facts and make a balanced reasoned decision.

People. I cannot spend all my time talking you all off the ledge. Stay off the ledges.

Stop following the “experts” and personalities who are keeping you enraged. We have a long year ahead of us. More indictments are coming. Don’t give Trump the fight he wants.

I know it’s addicting. I know they are entertaining. I know they are clever with their one-liners. (That is why they are asked to be on TV.)  Their job is to entertain and keep you engaged.

(My updated Criminal Law FAQ page is here.)