The judge overseeing Donald Trump's January 6 federal trial has been put in a difficult situation with regards to whether she will impose a protective order which would stop the former president from discussing the case publicly, legal experts have suggested.
On Friday, prosecutors in Special Counsel Jack Smith's office wrote to U.S. District Judge Tanya Chutkan, to draw her attention to one of Trump's Truth Social posts in which he wrote: "IF YOU GO AFTER ME, I'M COMING AFTER YOU!"
Federal prosecutors said that Trump has previously issued other strongly-worded social media posts targeting "witnesses, judges, attorneys and others associated with legal matters pending against him" and warned that Trump may also disclose information that is important to the case with his public comments while calling for a protective order to be imposed, which is standard procedure during most criminal cases.
Trump's team dismissed the concerns from federal prosecutors, claiming Trump's remarks were the "definition of political speech" and protected under the First Amendment. However, over the weekend Trump did not rein in his social media output, including attacking former vice president Mike Pence as "delusional," and had "gone to the dark side," sparking debate about whether Trump's comments towards Pence amount to potential witness intimidation.
Laurence Tribe, professor emeritus of constitutional law at Harvard University, was one of those who outlined the difficult situation with regard to Judge Chutkan's decision on a protective order, and how the former president may react to it.
"Trump's plan is (1) to gloat if he gets away with trashing witnesses in defiance of the judge's orders and (2) to play victim and make the judge's life a living hell if she imprisons him to enforce her mandate," Tribe posted on X, formally Twitter. "She should call the coward's bluff."
Tribe was replying to a post from former FBI general counsel Andrew Weissmann, who wrote while sharing a screengrab of Trump's Truth Social post about Pence: "Trump is intentionally provoking the US and the Judge so he can then play the victim and heap scorn on both. Very transparent and deliberate plan."
Bradley P. Moss, a lawyer who specializes in national security, said that Trump may soon be at risk of breaking the law because of his social media activity should a protective order be issued.
"Keep talking. He's going to risk getting thrown in jail for violating the terms of release," Moss wrote while also sharing a Truth Social screengrab of the former president attacking Pence.
Trump's office has been contacted for comment via email.
In the 45-page indictment which lays out the four charges Trump has pleaded not guilty to, one section details a conversation between Pence, a potential key witness in the trial over the attempts to overturn the 2020 election results, and Trump had on January 1, 2021, five days before the Capitol riot.
During the meeting, Pence said he didn't have the constitutional power to stop the votes from being certified, to which Trump allegedly replied: "You're too honest."
In a Truth Social Post on Saturday, Trump dismissed Pence's versions of events while describing his once close ally as "delusional" and that the former vice president, who is running alongside Trump in the 2024 GOP primary but well behind in the polls, now "wants to show he's a tough guy."
Lawyer Aaron Parnas said that while Trump's social media posting may add to his legal woes, he does not believe they amount to witness intimidation.
"Trump is towing a very delicate line here, and could get himself into trouble with the court if he continues to make comments like these," Parnas told Newsweek.
"But, as with most things with Trump, we are in unique legal territory as we've never had a former President indicted, especially one who is running for public office again."
Trump's attorneys were given a deadline of 5 p.m. Monday by Chukan to either accept Smith's proposed protective order or submit a revised proposal.
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