When he turns himself in to Fulton County authorities Thursday, Donald Trump will agree not to intimidate or threaten witnesses, co-defendants and others – even on social media.
Whether he abides by the terms of his release – and what Superior Court Judge Scott McAfee will do if he does not – are open questions. Legal observers say the former president’s penchant for attacking his perceived political enemies presents an extraordinary challenge as McAfee presides over Trump’s Georgia prosecution.
The need for a fair trial requires protecting witnesses, co-defendants and jurors from potential threats. But the U.S. Constitution offers broad protection for Americans to criticize their government – including court proceedings.
With Trump already blasting those involved in his various criminal cases, some observers say it’s only a matter of time before he tests McAfee’s resolve.
“I don’t envy him when Trump does something that violates that bond,” said Atlanta defense attorney Seth Kirschenbaum. “It’s going to be a ‘now what’ situation.”
Trump and 18 others face charges stemming from his effort to overturn the 2020 presidential election. He and other defendants say they have done nothing wrong, and the prosecution is a political witch hunt.
Trump plans to surrender at the Fulton County Jail Thursday and must post a $200,000 bond to remain free while awaiting trial.
As part of his bond agreement, he has agreed to “perform no act to intimidate” any co-defendant or witness in the case or to otherwise obstruct the administration of justice. Additionally, he must “make no direct or indirect threat of any nature” against any co-defendant, witnesses (including the 30 unindicted co-conspirators), victims and “the community or to any property in the community.”
And it also prohibits him from communicating with co-defendants about the facts of the case unless he goes through their attorneys.
The bond specifies that the restrictions include posts or reposts on social media. For Trump, who regularly uses social media to attack his rivals and critics, that ban could prove problematic.
Last week’s Fulton County indictment is the fourth time Trump has been charged this year. He has responded by calling one judge “biased and unfair,” labeled Justice Department special counsel Jack Smith a “deranged lunatic” and chided former Vice President Mike Pence – a potential witness against him – as “delusional.”
Trump also has falsely accused Fulton County District Attorney Fani Willis of having an affair with a gang member she was prosecuting. And as the criminal cases against him began to mount, he took to social media to declare, “If you go after me, I’m coming after you!”
A Trump spokesman said the latter comment referenced “RINO, China-loving, dishonest special interest groups and Super PACs.” Some observers aren’t so sure.
“He can explain it away, I suppose,” said former DeKalb District Attorney Bob Wilson. “But that clearly could be interpreted as a threat to those who might be testifying against him.”
Trump isn’t the only one who’s angry. The Fulton County Sheriff’s Office is investigating threats against the grand jurors who issued last week’s indictment.
Former DeKalb County District Attorney Robert James said those kinds of threats are exactly what the conditions of Trump’s release are designed to thwart. He said the conditions are warranted, given Trump’s behavior.
Credit: arvin.temkar@ajc.com
Credit: arvin.temkar@ajc.com
“You can declare your innocence. You can say, ‘I think the case is a garbage case,’” James said. “You’ve got a First Amendment right to do that. But what you can’t do is use your bully pulpit to intimidate witnesses or anyone involved in the case.”
The challenge for McAfee will come if – or perhaps when – the DA’s office files a motion that contends Trump has violated the conditions.
Kirschenbaum said judges would have no qualms revoking bond and jailing any other defendant. But he said Trump is not like any other defendant.
“How do you revoke the bond of Mr. Trump?” he said. “The leading (Republican) presidential contender is going to be, for the rest of the case, at the Fulton County Jail? That’s hard to picture.”
Legal experts doubt it would come to that. But they said they can envision Trump under home confinement, possibly with no access to social media.
Given Trump’s behavior to date, Wilson said it’s likely the former president will test the boundaries of what’s permissible. He expects the judge will give only so much leeway.
“The judges are not going to just let him do anything he wants to do and say anything he wants to say, if it clearly violates his conditions,” Wilson said. “They will do something.”
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