WASHINGTON — Donald Trump has been repeatedly threatening that his prosecutions will lead to violence and unrest, but the former president is nevertheless unlikely to be locked up in pretrial detention, legal experts said.
“Unfortunately, the courts are going to give him very broad deference,” said Norm Eisen, a lawyer in the Barack Obama White House who more recently worked on the House’s first impeachment of Trump. “That is the price of the First Amendment.”
Trump, who is again seeking the Republican nomination for the presidency, has been intimating violence in his public remarks for a year and half, but in recent months has been ever more open that the criminal cases against him are likely to result in mayhem.
On July 18, the day he announced he had been informed by special counsel Jack Smith that he was a target of the grand jury investigating the mechanics of his Jan. 6, 2021, coup attempt, Trump shared a post with his millions of followers that featured a recording of him saying: “If you fuck around with us, if you do something bad to us, we are going to do things to you that have never been done before.”
That same day, in an interview with an Iowa radio host, Trump warned: “I think it’s a very dangerous thing to even talk about, because we do have a tremendously passionate group of voters, much more passion than they had in 2020 and much more passion than they had in 2016.”
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Even in a social media post Thursday, confirming that his lawyers had met with Smith in an effort to discourage another indictment, Trump hinted that new charges could come at a price.
“An Indictment of me would only further destroy our Country,” he wrote.
Glenn Kirschner, a former prosecutor who spent decades in the U.S. attorney’s office in Washington, D.C., said that kind of language, had it come from a gang member he was prosecuting, would have quickly resulted in a request to the judge to deny bail based on the defendant’s clear danger to the community.
“Anytime I had evidence of threats by a defendant against a witness ― as I often did, as I spent 22 of my 30 years prosecuting murder cases ― I would present that information at the first court appearance,” Kirschner said.
Other former prosecutors agreed that threatening language does sometimes result in accused criminals being held behind bars until trial. They doubted, though, that Smith would make that request against a former president.
“I think that it would be fair to offer those statements, particularly the second, in support of detention — if the government were to seek detention, which I do not think it will do,” said Mary McCord, a former top official at the Justice Department. “Assume a drug kingpin made the second statement. The government would almost certainly use that statement to support detention.”
Danya Perry, a former prosecutor in the U.S. Attorney’s Office for the Southern District of New York, said Trump’s actions and track record in any other person could result in jail. “A history of perpetuating or inciting violence or veiled threats of violence generally would be a factor considered by a judge and could, if deemed evidence of danger, favor detention,” she said — adding that she also doubted that Smith would ask a judge to jail Trump.
The Department of Justice did not respond to a HuffPost query about whether Smith would seek pretrial detention in light of Trump’s comments. Trump’s staff also did not respond.
Trump had encouraged violence for years before his lies about a “stolen” election and a vitriolic rally speech on Jan. 6 led to a mob of his followers attacking the Capitol building in effort to keep him in power. One hundred and forty police officers were injured that day, and five officers ended up dead in the coming days and weeks.
He toned down his public remarks for about a year before he began inciting his supporters against prosecutors at a January 2022 rally in Texas. “If these radical, vicious, racist prosecutors do anything wrong or illegal, I hope we are going to have in this country the biggest protests we have ever had in Washington, D.C., in New York, in Atlanta and elsewhere, because our country and our elections are corrupt,” he said.
This March, in anticipation of an indictment in New York state court for falsifying business records to cover up a $130,000 hush money payment to a porn star, Trump warned of “death and destruction” should charges actually come.
In the days leading up to his arraignment on the secret documents indictment in June, Trump told North Carolina Republicans: “Our people are angry … And sometimes you need strength. You have to have strength, more than just normal strength. And we have to get a change because we’re not going to have a country left.”
The following day, he posted on his social media site: “SEE YOU IN MIAMI ON TUESDAY!!!” ― reminiscent of his Dec. 19, 2020, Twitter post urging his followers to come to Washington on Jan. 6, 2021: “Be there, will be wild!”
And in late June, Trump specifically went after not just Smith, but his family as well: “COULD SOMEBODY PLEASE EXPLAIN TO THE DERANGED, TRUMP HATING JACK SMITH, HIS FAMILY, AND HIS FRIENDS, THAT AS PRESIDENT OF THE UNITED STATES, I COME UNDER THE PRESIDENTIAL RECORDS ACT, AS AFFIRMED BY THE CLINTON SOCKS CASE, NOT BY THIS PSYCHOS’ FANTASY OF THE NEVER USED BEFORE ESPIONAGE ACT OF 1917.”
Neither that tirade, though, nor the threatening language in the 9-second audio clip — actually recorded three years ago, as Trump was discussing Iran — will be enough to persuade a judge to incarcerate Trump, Eisen said.
“For this kind of implicit speech, like this social media posting of the recording of his voice, that’s not going to cut it,” he said, as “odious and reprehensible and dangerous” as it might be.
Trump would have to make specific threats against specific people for a judge even to entertain the idea, and actually jailing him would come only after other measures, like a gag order, had failed to work, Eisen said.
“There’s going to be an extremely high threshold for constitutionally protected speech,” he said. “The fact that there’s even a question about it shows you the extraordinary protection the First Amendment provides.”