As soon as the magistrate judge in Washington warned Donald Trump that it was a crime to "influence a juror or try to threaten or bribe a witness or retaliate against anyone" related to his federal indictment for attempting to overturn the 2020 election, you could feel it coming: Trump would immediately flout the order his lawyers had agreed to in court. Sure enough, it took less than 24 hours for the 78-times-indicted former host of "The Apprentice" to issue all-caps challenges to the judge's authority on Truth Social. "IF YOU GO AFTER ME, I'M COMING AFTER YOU!" he posted in his usual understated manner.
Prosecutors promptly bundled up the threat into a request for a protective order. That was largely granted by U.S. District Court Judge Tanya Chutkan, who warned Trump, "I will take whatever measures are necessary to safeguard the integrity of these proceedings." Now, of course, Trump sees that warning as a dare. Except for a brief campaign visit to Iowa, he spent most of last weekend doing what he loves best: Delivering unhinged rants on social media attacking the judge, the prosecutors and, in a direct violation of the order, potential witnesses he called out by name.
Directly against federal Court orders/admonition given Duncan is witness in J6 DC proceeding.
— Mark S. Zaid (@MarkSZaidEsq) August 14, 2023
Expect his lawyers to be bought on the hot seat soon. At some point that individual straw will be placed on the camel's back. https://t.co/vrZejrjLvo
Trump is showing no less restraint when it comes to the most recent round of indictments delivered by Fulton County District Attorney Fani Willis in Atlanta. Unsurprisingly, this latest round of spleen-venting also featured some gross wordplay referring to a notorious racial slur.
Here we go again pic.twitter.com/AxBZeGVKEm
— Andrew Feinberg (@AndrewFeinberg) August 15, 2023
No doubt those being targeted this way remember the brutal assault on Paul Pelosi, husband of then-Speaker of the House Nancy Pelosi, or the recent arrest of someone who threatened Barack Obama after Trump posted the former president's home address. No reasonable person can deny that the intent here is to intimidate witnesses, potential jurors, judges and prosecutors.
There's an annoying tendency among the pundit class, however, to act like it's completely out of the question for Trump's bail to be revoked, which would silence him by sending him to jail (or possibly consigning him to house arrest). On "Pod Save America" last Thursday, host Dan Pfeiffer — despite claiming he's not in the prediction business — repeatedly scoffed at that idea. Legal experts on cable news and social media talked up such toothless consequences as further hearings, injunctions or an accelerated trial schedule. But so far, the conventional wisdom is echoed in former federal prosecutor Neama Rahmani's comments to Salon: "Is a judge actually going to jail Donald Trump in the middle of a presidential campaign? Probably not."
To which I say: Why not? Trump is a human being, approximately speaking, with a physical body that would fit quite nicely inside a jail cell. The only reason Trump is perceived as invincible is because he's managed to hex almost everyone into believing that he'll get away with everything, every single time. All we need to do to change that is to stop believing in the collective fiction of Trump's impunity. It's not a law of physics. Donald Trump can go to jail. The only thing that's required is the will to make it happen.
It wasn't long ago that the possibility of charging and indicting Trump for his numerous alleged crimes was routinely shrugged off as a #resistance fantasy. Anonymous FBI agents have told the Washington Post that higher-ups refused to entertain the idea of investigating Trump's role in the Jan. 6 insurrection until the House select committee held public hearings and shamed them into it. Now Justice Department special counsel Jack Smith has two criminal cases against Trump headed to court, one for the coup attempt and one for stealing classified documents. Willis filed a whopping racketeering indictment against Trump and 18 other alleged conspirators this week. The "unimaginable" can become reality. Trump is not physically impervious to justice. That imaginary protective shell around him is the result of choices of those in power, and it's time for those people to make different choices.
Whether this is strategic or just the result of a sociopathic need to test boundaries, Trump's rapidly escalating violations of every court order are already shaking the mainstream certainty that locking him up is out of the question. Prominent legal experts have actually observed that it's the only real remedy for a defendant this badly out of control.
On left:
— Ryan Goodman (@rgoodlaw) August 14, 2023
Former President Trump intimidates a witness in Georgia case.
On right:
Georgia law stating that to release a person on bail, the judge will have to find the defendant "poses no significant risk of intimidating witnesses."
Note: That is a presumption against release. pic.twitter.com/jzO3vFl0KH
Kyle Cheney of Politico pointed out an ironic subtext in Trump's online attacks on Judge Chutkan: Likely without meaning to, Trump's comments have highlighted Chutkan's observation that there's a double standard in play that leaves Trump free to strut, boast and complain while so many of his foot soldiers face punishment.
UPDATE: Trump going after Chutkan again (at 1am), quoting from her sentencing of Jan. 6 defendant Christine Priola in which she alludes to fact that Trump “remains free” despite hundreds of supporters who went to the Capitol for him facing consequences for Jan. 6. pic.twitter.com/9PK4uEniFI
— Kyle Cheney (@kyledcheney) August 14, 2023
Cheney also notes that Trump agreed to explicit conditions: Witness tampering is a crime punishable by prison.
A reminder of Trump’s release conditions: https://t.co/qlIXHU6tiz pic.twitter.com/aRAiA6eBJV
— Kyle Cheney (@kyledcheney) August 14, 2023
On MSNBC on Tuesday morning, Dave Aronberg, the state attorney in Palm Beach County, Florida, took this analysis a step further. "I'm waiting to see if there's going to be a partial gag order, because Donald Trump can't comply with one. And if he gets ordered to stay silent, you know he'll violate that. And that may be the quickest way that he ends up in an orange jumpsuit."
(People keep leaving "trade the orange makeup for an orange jumpsuit" jokes on the table. C'mon! It's time.)
Sure, there could be logistical problems for the Secret Service (which protects all current and former presidents) if the judge sends Trump to jail for violating his release agreement. Those can surely be worked out. Even if the only realistic answer is somewhat unsatisfying — putting Trump under house arrest and depriving him of his phone — that's a lot better than doing nothing. Frankly, it's better for almost everyone if Trump actually loses his freedom for these threatening antics. It's better for witnesses, for the judge, for potential jurors and for prosecutors. It's better for Trump's lawyers, who can do their jobs more easily without the constant headaches caused by their impulsive man-child of a client. I won't claim it's actually better for Trump himself, but even he benefits in one way: History suggests that his poll numbers go up when he's being relatively quiet, because people start to forget what a noxious asshole he is.
Most importantly, making Trump shut up is crucial to public safety. One of the most dangerous aspects of Trump's seeming invulnerability is that some of his followers start to believe they're immune to all consequences themselves. Most of the Jan. 6 insurrectionists weren't concerned with the cameras all around them, and many of them posted photos and videos of their escapades that day on social media. Trump's years of breaking the law with zero consequences had lulled them into thinking that they also were free to run buck-wild without fear of prison.
More than 1,000 people have now faced legal punishment for their role in the Jan. 6 riot. That has definitely quelled the MAGA tribe's collective overconfidence. But it's reasonable to worry that if Trump keeps thumbing his nose at the law, his followers will start believing themselves to be untouchable all over again. Just last week, a self-proclaimed MAGA devotee was killed by the FBI, after waving a gun at agents and public threats against President Biden and other perceived Trump opponents. Fox News and other right-wing outlets are professing outrage, reinforcing the message to the MAGA faithful that they have some kind of "right" to commit violent acts on Trump's behalf. With their hero's flagrant refusal to respect a straightforward court order, this dangerous sense of entitlement will only get worse. Tossing Trump in jail, even briefly, would go a long way toward reminding these people that there's no special MAGA exemption from obeying the law.
Wealth and privilege are only impregnable barriers to accountability if we believe they are. But it's not inconceivable for an elite person to get popped for a bail violation. Look at what just happened to Sam Bankman-Fried, the disgraced FTX founder now facing charges of financial fraud. He harassed a potential witness in his case, likely due to a Trumpian confidence that the judge wouldn't dare revoke his bail. But the judge did just that, and now a man who a year ago lived at a luxury resort in the Bahamas sits in jail awaiting trial.
Trump's belligerence is so over-the-top that it can bamboozle people into thinking that nothing can be done to stop him. But that act could collapse pretty fast if those who hold actual power stopped playing along. It's worth remembering that in the end Trump did leave office as scheduled on Jan. 20, 2021, without being physically dragged from the White House. He had spent the previous two months loudly refusing to admit he had lost the election and cooking up schemes to undo that fact. He clearly hoped his childish tantrum might convince everyone to give up and just let him have the office in perpetuity. But even the vague threat of personal conflict and humiliation was enough to make him skedaddle down to Mar-a-Lago when it was time to go.
The moral of the story is simple: Donald Trump is a coward. He can be contained and controlled, if he faces real consequences. Dealing with him just takes belief, imagination and some spine. It can be done.
