Former President Donald Trump is a defendant in four criminal cases in four jurisdictions. Most people charged with even one crime would take the advice of their lawyers and say nothing about the charges, let alone publicly question the fairness of the prosecutor or the presiding judge.
But not Donald Trump. He is using his Truth Social outlet and his campaign for president to attack them as well as witnesses, including his former vice president and now rival running for president, Mike Pence. Should anything be done about those attacks?
At the outset, there are two people in each case to whom the question should be directed ― the prosecutor and the judge ― and the answers may not be the same for each for everything that Trump may say in all circumstances. Trump has already been ordered not to speak directly to potential witnesses in these cases unless his lawyers are present. The potential for intimidation in one-on-one situations is much greater than if Trump makes general threats on social media or in a campaign speech where there can be no debate about what he said.
One fear about allowing Trump’s attacks on the proceedings to continue is that it will make it harder to pick a jury that has not heard Trump’s allegations that the cases are all about politics and are completely baseless. Picking impartial juries in these cases is going to be very difficult and time-consuming, but is that task really going to be more difficult than it already is just because of the statements that Trump has made and will likely continue to make? I doubt it.
What about his attacks on Pence or others that will probably not stop? These witnesses knew when they appeared before the grand jury that Trump would almost certainly deny their version of what happened and attack them as liars. Their testimony is already locked in, and they would face serious problems if they suddenly changed their minds about a conversation with Trump or some other aspect of the charges against him.
As a prosecutor, not only would I not be concerned about Trump’s public claims that adverse witnesses are liars or worse, but I would hope he continues down that path because his statements could be very useful at trial. Here’s how.
Defendants in criminal cases have the right not to testify, and most lawyers in most cases strongly urge their clients not to take the stand in their own defense. Most lawyers believe that Trump would receive and accept that advice to avoid cross-examination, given his long history of straying from the truth. Individuals accused of a crime have another protection if they do not testify: The government may not point out to the jury that the defendant did not give his own version of the facts in court.
But Trump’s out-of-court statements ― such as calling Pence a liar ― may be admissible against him, and the jury will undoubtedly notice that, while Trump has made any number of out-of-court claims, he is apparently unwilling to respond under oath. In other words, prosecutors may decide that there are real upsides to letting Trump continue to attack the charges against him and that they should not ask for a gag order unless there is strong evidence that he is actually trying to threaten a prosecution witness.
The judges in these cases are in a somewhat different position because they have an independent duty to protect both witnesses and the dignity of the court. In addition, unlike the prosecutor, they do not obtain any advantage by allowing Trump to disparage the process and to accuse witnesses of all sorts of nefarious acts outside the courtroom. Most defendants would understand that calling the judge unfair or biased would not be helpful in their cases, but Trump seems to have made a different calculation: Attacking the judge and the prosecutor is good for his defense.
One reason behind what may seem to be an irrational approach is that Trump is trying to goad these four judges into issuing a very broad gag order against him. That would give him an excuse to move to disqualify the judge, and then to appeal the adverse orders, on the ground that his First Amendment rights, especially those he is exercising as a candidate for president, are being irreparably violated. That appeal, which would not be without some merit, depending on the breadth of the gag order, would surely delay any trial, which seems to be Trump’s primary goal at this time. There is a race for president going on alongside these prosecutions, much as the judges and prosecutors wish that it were not so, and that fact significantly raises First Amendment concerns with any gag order.
In the end, Trump’s attacks may require judges presiding over his cases to issue some orders to protect witnesses from direct intimidation and, in the most serious situations, prevent further attacks on the integrity of the judicial process. But the judicial action that Trump fears most is not a gag order; it is a speedy trial.
As soon as a trial begins, Trump will be under a new set of constraints and will be like every other criminal defendant ― under the control of a trial judge with the power to do everything necessary to ensure that the trial is fair and not sidetracked by Trump’s social media comments and campaign speeches.
Alan B. Morrison is associate dean at George Washington University Law School, where he teaches constitutional law and civil procedure. He is a former assistant U.S. Attorney.
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