Former President Donald Trump is testing the tolerance of the judiciary, and perhaps even his own legal team, with belligerent messages about prosecutors, witnesses and judges involved in the criminal cases against him.
Trump already has disparaged former Vice President Mike Pence, who could be a key witness against him in a federal election interference trial, and urged former Georgia Lt. Gov. Geoff Duncan not to testify before a grand jury in Fulton County, Ga.
"If you go after me, I'm coming after you," Trump posted on social media, a day after his arraignment in Washington, D.C., earlier this month.
Trump announced, then postponed, a news conference at his golf club in Bedminster, N.J., to blast the latest charges, 13 counts including racketeering filed by a district attorney in Georgia, after multiple news organizations reported his lawyers were leery of such a move.
'A collision course'
But lawyers familiar with Trump's rhetoric said they expect the former president to wade into commentary, and personal attacks, on people involved in bringing him to justice across four separate criminal indictments in four different jurisdictions.
"We are on a collision course involving an institution — the courts — built on respect and tradition and a public figure whose modus operandi requires tearing down respect and tradition," said longtime criminal defense lawyer Martín Sabelli. "Judges will struggle to contain Mr. Trump and will doubtless ensure that these matters are tried before juries, but the dynamic will be ugly and likely further divide us."
Barry Boss, a former assistant federal public defender who now represents clients at the firm Cozen O'Connor, said defense attorneys generally warn clients not to talk to anyone about the case against them. "In the normal case, there are only risks and no benefits," Boss added.
Moreover, Boss said, prosecutors could point to Trump's recent remarks that more indictments only serve to increase his lead over his political rivals for the 2024 GOP nomination for the White House the next time Trump and his legal team tell judges that the criminal cases are interfering with the election.
Uncharted territory
Judges overseeing the cases against Trump may have an array of tools at their disposal to try to keep him in check: from warnings, to a gag order, to fines, to even short periods of incarceration. But bringing those tools to bear against a former president, who is running again, could prove to be enormously sensitive and consequential.
U.S. District Judge Tanya Chutkan, a former public defender who will preside over the election conspiracy case in Washington, D.C., acknowledged some of the challenges Trump's attorneys will face in defending him across multiple jurisdictions in the year ahead.
But Judge Chutkan said that Trump's status as a criminal defendant meant that some of his First Amendment rights must "yield" to a need to protect witnesses and the jury pool from possible taint.
"I caution you and your client to take special care in your public statements about this case," Chutkan told Trump's lawyer last week. "I will take whatever measures are necessary to safeguard the integrity of these proceedings."
Robert Luskin, who started his career decades ago in the Justice Department's organized crime and racketeering section, said he had watched more than one mafia-linked defendant catch new charges for obstruction, based on statements the defendants made after an indictment.
"The only conclusion I can draw is that Trump ... is simply daring the court and the government to call him out, concluding that the government wants a clean and lean case against Trump and will not go down rabbit holes, even ones filled with rabbits," said Luskin, who now defends companies and individuals at the firm Paul Hastings.
Luskin said it's interesting that Trump has gone after the federal special counsel Jack Smith, Fulton County, Ga., District Attorney Fani Willis, Manhattan District Attorney Alvin Bragg, and New York State Supreme Court Justice Juan Merchan.
But Trump has directed no such withering criticism at U.S. District Judge Aileen Cannon, in Florida, whom he appointed to the bench in 2020. Cannon is presiding over a Florida case that accuses Trump of keeping highly classified documents in a basement, ballroom and bathroom at the Mar-a-Lago resort, then refusing to return them to the FBI. The judge was overruled by equally conservative federal appeals court judges in a related dispute involving Trump last year.
"One can only assume that he believes she is inclined to be sympathetic to him and does not want either to piss her off or put her in a position where she simply has to act in order to preserve her credibility and dignity," Luskin said.
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