Sure, Donald Trump blew his gag order – but this is about something bigger
Last night Judge Tanya Chutkan denied Donald Trump’s appeal of her gag order, meaning the gag order was reinstated. Moments later Trump made a Truth Social post attacking Bill Barr, who is listed as a possible trial witness. This immediately set off all kinds of alarms, along with a good amount of confusion.
It’s important to keep in mind that if you’re a criminal defendant and you attack a witness, that’s felony witness tampering whether or not there’s a gag order in place. Trump’s attack on another witness Mark Meadows the other day is just as much of a felony as Trump’s attack on Barr last night was. So it doesn’t matter if Trump knew about the reinstate gag order at the time he attacked Barr or not.
Gag orders are used to further curtail a defendant’s rights as needed, beyond what the law already covers. But under the law, witness tampering is one of the most severe crimes a defendant can commit while awaiting trial. There will be absolute hell to pay, both for Trump’s attack on Barr and for Trump’s attack on Meadows. It just won’t happen in the instant magic wand way that observers on social media seem to think the law works.
Jack Smith will promptly put both these Trump social media posts in front of the judge and argue for additional crackdown on Trump’s pretrial privileges. Even if Judge Chutkan isn’t ready to put him in jail at this point, it wouldn’t be surprising to see something along the lines of Trump being banned from making any mention of the case on social media at all (this is what happened to Roger Stone while he was awaiting trial). But the pretrial stuff is just the half of it.
Even as we speak, there’s little doubt that Jack Smith is already in the process of evaluating Trump’s two acts of witness tampering to see if he can turn them into viable criminal charges. Keep in mind that not every “obvious” crime is something that a prosecutor can get a conviction on. For instance, Trump could argue at trial that he didn’t make these two Truth Social posts, and that someone else has been ghostwriting for him.
In order to head off this potential defense, Smith will presumably subpoena the relevant social media records and/or devices in order to prove whether or not Trump was the one who made these posts. And that’s where things could get interesting.
Trump has come off as consistently senile in his recent public appearances. There are serious questions about whether the babbling, confused, struggling-for-words guy we keep seeing at the podium could possibly be writing these supercharged verbose over the top Truth Social media posts. So when Jack Smith dives in to seek proof that Trump made these two witness tampering posts, he could instead end up with proof that someone else is indeed ghostwriting this stuff due to Trump’s cognitive absence.
It would be a highly embarrassing turn of events for Trump if it’s revealed that he’s not even the one posting any of these defiant Truth Social screeds. It would also mean that one of Trump’s handlers would be in potential legal trouble for witness tampering, and could be pressured into cooperating against Trump.
So there are a lot of directions this could go from here. None of them are going to involve Donald Trump falling through an instant trap door. Nor is this going to involve Trump “getting away” with anything. The prevailing narratives on social media are always based on one of these two extremes. But neither is based in reality. Of course Trump won’t get away with felony witness tampering. And of course his legal punishment isn’t going to be handed out by instant magic wand.
In that sense it’s more important to ignore both the “Trump will fall through an instant trap door” and the “Trump will get away with it all” crowds. In reality the legal system will continue to chip away at Trump until there’s nothing left of him. It just comes down to two things.
First, Judge Chutkan has to determine at what point Donald Trump’s pretrial actions are sufficient legal grounds for hitting him with severe restrictions on his behavior and/or pretrial incarceration. Keep in mind that if Chutkan jumps the gun out of frustration, the appeals court would overrule her. Chutkan has to adhere to actual legal precedent, not the social media hyperbole of those who keep insisting we’re “doomed” unless Trump is locked up right this minute.
Second, Jack Smith has to determine whether he can bring viable witness tampering charges against Donald Trump for these social media posts. As I’ve spelled out, that first comes with the process of obtaining proof of whether Trump made these posts. That’s not an instantaneous thing.
Let’s also keep in mind that Trump’s behavior, while criminal, isn’t helping him any. These witnesses are not going to cower and hide under their desk and fail to testify just because Trump said something mean about them in a social media post. Nor is this going to keep a jury from being seated (we’re talking about finding twelve people who don’t care about politics out of a million potential jurors). So in spite of all the doomsday hyperbole on social media, there is actually not any need to rush things in terms of dealing with Trump’s posts. It will be dealt with like the important matter that it is. But let’s not confuse importance with haste. Rushing things is how prosecutors lose.
I’m also inclined to point out one more time for emphasis – because this point keeps inexplicably getting ignored amongst all the shouting – that witness tampering is a felony regardless of whether or not any gag order is in place at the time. In that sense the gag order is something of a red herring. This isn’t about a gag order. This is about felony witness tampering.
