At Donald Trump’s arraignment last Thursday for trying to overturn the result of the 2020 election, the magistrate judge Moxila A Upadhyaya warned him that he could be taken into custody if he violated the conditions of his release, including attempting to influence jurors or intimidate future witnesses.
Calling him “Mr Trump” rather than President Trump – thereby emphasizing that he was being treated as any criminal defendant would be treated – she said:
“I want to remind you that it is a crime to try to influence a juror or to threaten or attempt to bribe a witness or any other person who may have information about your case, or to retaliate against anyone for providing information about your case to the prosecution, or to otherwise obstruct the administration of justice.”
The judge then warned Trump: “You have heard your conditions of release. It is important you comply. You may be held pending trial in this case if you violate the conditions of release.”
She asked Trump: “Do you understand these warnings and consequence, sir? Are you prepared to comply?”
Trump responded: “Yes.”
But not 24 hours later, Trump posted on social media a message that could be understood as an attempt to influence potential jurors or retaliate against any witness prepared to testify against him: He wrote: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
On Friday evening, prosecutors from the office of special counsel Jack Smith asked the court for a protective order to stop Trump from making public any of the information they were about to deliver to his lawyers under the discovery phase of the upcoming criminal trial, such as the names of witnesses who will testify against him.
They noted that such protection was “particularly important” because Trump “has previously issued public statements on social media regarding witnesses, judges, attorneys and others associated with legal matters pending against him”.
Citing his social media message from earlier in the day, they argued that publishing such information “could have a harmful chilling effect on witnesses”. The prosecutors included a screenshot of Trump’s threatening post from that same evening.
On Saturday, the presiding judge in the case, Tanya Chutkan, ordered that Trump’s lawyers respond to the prosecutor’s request for a protective order by 5pm Monday.
All through the weekend, Trump continued to threaten potential witnesses.
“WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him VP, has gone to the Dark Side,” he posted on Saturday.
And Trump hasn’t stopped attempting to obstruct justice.
On Sunday he called Jack Smith “deranged”, and in another all-caps message he accused Smith of waiting to bring the case until “right in the middle” of his election campaign.
In another post he asserted that he would never get a “fair trial” with Chutkan and jurors from Washington DC.
These statements directly violate the conditions of Trump’s release pending trial.
They also could inflame Trump supporters, thereby endangering those who are trying to administer justice, such as Smith and Chutkan, as well as potential witnesses like Pence.
It’s going to get a lot worse unless Chutkan – on her own initiative or at the urging of prosecutors – orders Trump’s lawyers to show cause why his release pending trial should not be revoked, in light of his repeated violation of the conditions of his release.
This would at least put Trump on notice that he will be treated like any other criminal defendant who violates conditions of release pending trial.
That’s what the rule of law is all about.
At this moment, about 400,000 criminal defendants are in jail in the United States awaiting trial because they didn’t meet a condition of their release.
Trump is now under the supervision of the court, as would be any criminal defendant after an arraignment.
But he will continue to test the willingness and ability of the court to treat him like any other criminal defendant unless he’s reined in.
The court must fully assert the rule of law during these proceedings, even if that requires threatening Trump with jail pending his trial. And if he continues to refuse to abide by the conditions of his release, it might be time to actually jail him.
Robert Reich, a former US secretary of labor, is professor of public policy at the University of California, Berkeley, and the author of Saving Capitalism: For the Many, Not the Few and The Common Good. His new book, The System: Who Rigged It, How We Fix It, is out now. He is a Guardian US columnist. His newsletter is at robertreich.substack.com
