Trump’s Social Media Postings

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 had been planning to do this anyway. It is routine. The DOJ will want more restrictions. Trump will want fewer.

This 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.)

Team Trump then released this:

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

So I went back and read the terms of his release. 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.

I said, “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, break it into elements. Ordinarily, you need proof beyond a reasonable doubt but because of the situation, revocation of release requirements can be done on probable cause of a new violation. (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. As I 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 are 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 integrityor 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.

But Teri! What about the lot Truth Social Post in which he attacked Pence?

Do you meant his one?

Yes, he attacked Pence, but this post does not meet the elements for witness intimidation. Scroll back and do the analysis yourself.

Moreover, Trump wrote this immediately after Pence (who is also running for president against Trump) went on TV and attacked him. Chronology:

On August 2, Mike Pence began giving TV interviews reacting to the indictment and saying in these interviews that Trump’s lawyers told him to overturn the election.

On August 5,  Trump posted his “Liddle Mike” post attacking Pence.

So we have a double problem. (1) these posts do not meet the elements of witness intimidation and (2) if Pence is attacking Trump and trying to win the political nomination, can you really tell Trump he can’t respond?

Interesting aside: If you were to do that, the person who would benefit is Pence.

This, by the way, is how Special Counsel referred Trump’s Liddle Mike post in their latest filing:

In other words, the DOJ is using these unhinged posts to get a more stringent protective order, which is what they want.

What would be an appropriate judicial reaction? 

She 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.

I will tell you what I think Trump and his lawyer Lauro redoing 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:

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

NOTE: The analysis I did about whether Trump committed a crime took me a very long time to do. It is very easy to do a knee-jerk reaction and shout HE BROKE THE LAW or HE VIOLATED THE TERMS OF HIS RELEASE. The legal analysis takes time and requires focused thinking.

TV lawyers can offer knee-jerk response. 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 made a balanced reasoned decision.

Teri, People are throwing up their hands and blaming Jack Smith for being too “hesitant” in going after Trump for his social media posts.

Who are these “people?” Are they the same people who spent 2021 and 2022 saying these kinds of things:

• Merrick Garland is too weak!
• He is afraid to indict Trump!
• Garland is doing it wrong! He should not be working from the bottom up! He should be doing X!
• He needs to be fired so that someone tougher can be given the job!
• He is too much of a rule follower! He needs to flip a few tables!
• The Barr DOJ would have brought indictments by now? What is wrong with Garland!

I did a quick check, and yes indeed, they are the exact same “legal commentators” who had you riled all through 2021 and 2022 believing that the Garland DOJ was not tough enough indict Trump.

I see three reasons you were all in a funk this weekend:

Stop Following the TV Lawyers or Media Accounts that Are Keeping You Enraged

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.)

If you spent the weekend enraged that the DOJ wasn’t immediately moving to throw Trump in prison for his social media posts, I suggest that you are being manipulated by both sides. Trump has baited you into the fight he wants and the rage-inducers took advantage of the situation to rile you and get “clicks” and “likes.”