President Donald J. Trump disembarks Marine One at Valley International Airport in Harlingen, Texas Tuesday, Jan. 12, 2021, and boards Air Force One en route to Joint Base Andrews, Md. (White House Photo)
Trump has been goading prosecutors and judges in his criminal and civil cases for months, while so far managing to avoid any serious infractions despite repeated warnings and two violations of limited gag orders against him. Legal experts who spoke with VICE News said that while Trump’s ultimate intent might seem transparent enough, his manner of expressing it likely insulates him from any legal attempt to hold him accountable for incitement for a post like this one. “The test for incitement is challenging for prosecutors,” Sandick said. “Trump’s lawyers would say that his ‘retruth’ is not an endorsement of the underlying message, that since it is a ‘fantasy’ it lacks the necessary imminence for incitement, and also that by invoking an ‘arrest,’ he is only asking that the legal process function properly.”Gene Rossi, a former federal prosecutor in the Eastern District of Virginia, said the post lacks the immediacy necessary to show Trump wanted to incite someone to direct action. “Incitement is a specific declaration to persuade somebody to engage in violence,” Rossi said. “As they say: Close, but no cigar.”
Yet Trump’s fans have already prompted safety concerns among the officials overseeing his criminal nightmare. One recent threat was received by the office of Judge Tanya Chutkan, who is presiding over the federal criminal case in Washington D.C. against Trump for election subversion. A Texas woman was arrested in August for allegedly leaving a voicemail in which she said: “Hey you stupid slave n—– … You are in our sights, we want to kill you.” In the spring, Manhattan District Attorney Alvin Bragg charged Trump with 34 felony counts for allegedly falsifying documents related to the hush money payoff of adult film actress Stormy Daniels before the 2016 election. Daniels claims she slept with Trump in 2006, but Trump denies her story and entered a not guilty plea in a Manhattan courtroom on April 4. Bragg’s office was deluged with threats, the prosecutor later revealed, receiving over 1,000 threatening messages in just a few weeks around the time the charges were announced. Many were riddled with racist language. Someone sent an envelope full of white powder to the Manhattan DA’s office, which was eventually proven harmless. “Sometimes he says incendiary things that his followers act on, as in “will be wild.” This is an actual incitement to break the law and it greatly endangers the judge and AG,” wrote former U.S. Attorney Harry Litman on Twitter/X.
Trump has been warned repeatedly by judges to temper his language, and even slapped with two limited gag orders curtailing what he can say, by Judge Chutkan in Washington D.C. and by Judge Engoron in New York City. Yet Trump has appealed both orders, and as of Thursday both have been temporarily paused pending the results of his appeal. That means Trump is not currently gagged, and so is free to say what he likes. That includes criticizing federal Special Counsel Jack Smith, as well as the staff of Judge Engoron’s court—both of whom Trump would be barred from verbally attacking if the gag orders were still in place. The gag order in New York was specifically intended to stop Trump from criticizing Judge Engoron’s clerk. Moments after the order was stayed, Trump launched another post attacking both Judge Engoron and the clerk.
“His Ridiculous and Unconstitutional Gag Order, not allowing me to defend myself against him and his politically biased and out of control, Trump Hating Clerk, who is sinking him and his Court to new levels of LOW, is a disgrace,” Trump wrote.
More than one of Trump’s former legal advisors have said they expect Trump will keep testing his limits, even if the gag orders are snapped back into place—creating a dynamic where he may test a judge’s resolve to punish a former commander in chief. “He’s like a defiant nine-year-old kid who is always pushing the glass towards the edge of the table, defying his parents from stopping him from doing it,” Trump’s former Attorney General William Barr said in June.Cobb, Trump’s former White House lawyer, recently predicted that nothing short of jail could temper Trump’s addiction to lashing out on social media. Theoretically, a violation of a gag order could be punished with jail time, although judges are typically reluctant to jump to such an intense penalty. “He’ll keep doing it until he provokes a penalty far greater than he’s suffered so far in the process,” Cobb told CNN. “Ultimately I think he’ll spend a night or a weekend in jail. I think it’ll take that to stop him.”