Walking the Line Between Campaigning and Obstruction

Former President Donald Trump speaks at the 56th Annual Silver Elephant Dinner hosted by the South Carolina Republican Party on August 5, 2023, in Columbia, South Carolina. (Photo by Melissa Sue Gerrits/Getty Images)

Welcome back to The Collision, where we’re waiting on what could be the fourth criminal indictment Donald Trump will face this year. The New York Times and others are reading signs in Atlanta, including newly erected barriers and closed streets around the Fulton County courthouse. CNN reports that early next week District Attorney Fani Willis will likely present to a grand jury the findings of her lengthy investigation into Trump’s efforts to overturn the 2020 presidential election results in Georgia. 

Tampering and Obstruction, or Just Political Bloviating?

The potential for Donald Trump the candidate to interfere with Donald Trump the defendant’s trial appears to already be on Jack Smith’s mind. In the election interference case, the special counsel has moved for a protective order to prevent Trump from publicly disclosing some evidence of a sensitive nature that investigators gathered and have presented to defense counsel. The court filing cites some of Trump’s recent commentary on his Truth Social page, including the ominous (but vague) proclamation, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!

“All the proposed order seeks to prevent is the improper dissemination or use of discovery materials, including to the public,” prosecutors wrote in their filing. “Such a restriction is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys and others associated with legal matters pending against him.”

Judge Tanya Chutkan will hold a hearing Friday to decide on the protective order, which Trump’s attorneys argue should be narrower than what Smith has proposed. While we wait to see how Chutkan rules on the protective order, it’s worth considering how Trump’s political rhetoric on the trail—generally protected by the First Amendment, no matter how outrageous, uncivil, or riddled with falsehoods—could nevertheless put him at risk of more legal trouble. 

Beyond what Trump might do or say privately, what the former president says about his cases—about the jurors, the prosecutors, the judges, or the witnesses—could be used by prosecutors to charge him with obstruction of justice or witness tampering. The bar for establishing that through words alone is high, and probably higher in this case given the hyperbolic nature of political rhetoric. Gov. Ron DeSantis may have been ill-advised to say recently he would start “slitting throats” in the federal bureaucracy if elected president, but no reasonable person would believe the Florida Republican literally intends to physically harm people working at the Department of Commerce.

Statements that sound menacing but are ambiguous or not specifically directed—such as the aforementioned all-caps Truth Social post included in the special counsel’s recent filing—likely don’t rise to the level of intimidating or threatening. There’s no clear target of the intimidation—the phrase “I’M COMING AFTER YOU” could be read as a threat against potential witnesses against him, but it could just as reasonably be interpreted as a threat against his fellow candidates if they keep bad mouthing him in Iowa. Maybe he was thinking about Mark Meadows when he wrote it. Maybe he was thinking about Chris Christie. If both could plausibly be true, then there’s no crime. 

But former federal prosecutors tell The Collision that Smith’s team is almost certainly closely monitoring Trump’s every public utterance—both at campaign events and on social media—for if and when his comments go from vague and defensible to targeted and prosecutable. If that happens, they could watch for a pattern of behavior and build a big case to bring additional charges, or they could file individual charges as they come.

Either way, prosecutors have to establish relevant facts when it comes to these sorts of charges: Did the person intend to harass or intimidate witnesses, jurors, or others in order to corruptly influence the case? Is there a pattern or a series of incidents of such conduct from the person that demonstrates intent? Is it reasonable that the target of those words could have been harassed or intimidated? All of it requires evidence—and fortunately for Smith and his team, Trump will give them plenty of opportunities to find it over the next several months.

The Pence of It All

One area where this would get complicated for Smith and for Trump is regarding former Vice President Mike Pence. The Indiana Republican is not only a political rival, running against Trump for their party’s nomination. He’s also a fact witness in the election interference case, having been a target of Trump’s efforts to delay the counting of electoral votes on January 6. Since the second federal indictment, Pence has stepped up his defense of his actions and criticism of Trump and his team of “crackpot lawyers” in the weeks after the 2020 election. He’s even laid open the possibility he could be compelled to testify in Trump’s trial. (It’s even complicated for Pence, whose credibility the defense team could try to impeach by arguing the former vice president is motivated by animus toward his political opponent.)

While polls indicate Pence is hardly the most worrisome threat to Trump’s frontrunner status, the former president could find himself unable to resist criticizing Pence in ways that touch on the facts of his legal case or on the potential he could take the stand. Insults like “Liddle’ Mike Pence” may not constitute intimidation, but more pointed comments could be construed as harassment. On the other hand, it also can’t be the case that Pence can attack Trump but Trump can’t respond by attacking Pence in the context of the race. But there’s a world of difference between Trump saying Mike Pence is a liar and voters shouldn’t trust a word he says and If Mike Pence testifies at my trial, he’ll be sorry he did so when I’m elected president.

Smith and his team are watching and listening—while Trump’s legal team is likely wishing and hoping their client can control himself.

Mike’s View

As with so much involving Donald Trump, the whole scenario with potential witness tampering or obstruction of justice would be a sticky, terrible mess. To thoroughly protect himself from even the appearance of corruptly interfering in his trial, Trump and his campaign would have to go completely dark, silencing himself as he runs for the Republican nomination and, if he wins that, for the White House. Needless to say, it’s exceedingly unlikely he’ll do anything of the sort, and it’s ridiculous to expect him to.

Yet it’s also clear that Trump has a willingness to engage in irresponsible speech that targets individuals deemed disloyal to him and encourages his supporters to use violence on his behalf. “Irresponsible” does not always mean “illegal,” but the heat of a contentious campaign could see the former president intensifying his attacks on those involved with the trial in ways that do break the law. If that’s the case, Jack Smith will have to make a difficult choice about bringing additional charges against a presidential candidate specifically for rhetoric on the campaign trail. Like I said, it’d be a sticky, terrible mess.

Let’s not forget that Smith has a responsibility to make the best possible case that Trump committed the crimes he’s charged with. He risks undermining that case if he brings additional charges on process crimes that are undercooked or easily dismissed. The case, even more so than the document retention case in Florida or his hush money case in New York, is fraught with these sorts of legal and political land mines—and Smith will have to tread carefully and deliberately.

Delays, Delays, Delays

We know that Donald Trump and his team want these trials delayed for as long as possible. And why not? The more attention Trump gets between now and the primaries, the more he starves his potential challengers of any oxygen. And, with this many pending cases, he’s got a better statistical chance of becoming president at this point than being acquitted in every one of them. He’d definitely prefer to roll the dice on the presidential election first, after which he can potentially pardon himself or simply freeze all the cases until he is out of office. 

(A Quick Sarah Sidebar: There’s no one who can say definitively whether a president can pardon himself under the Constitution because the text doesn’t speak to it and it’s never been tried. But it’s also not clear who could stop a president from doing it. But this is a discussion for a future Collision.)

So if your goal is to delay, how do you do it? Many people are pointing to the recent court filings by Trump’s legal team as proof of concept. In the election interference case in the District of Columbia, for example, we discussed above the fight over the proposed protective order substantively. But there was an interesting process point here as well. Trump’s team tried to delay the hearing on the special counsel’s requested protective order from Thursday or Friday of this week to Monday or Tuesday or next week. Their reasons were … flimsy. The judge set the hearing for Friday. Of course, delaying this hearing by a business day or two is technically a delay. But it isn’t a very effective way to get the trial pushed to January 2025. A day here and day there and pretty soon, you’ve got just a couple of weeks. So if delay isn’t the point, what is going on here? 

We’ll offer a few, non-mutually-exclusive options. 

First, Trump’s legal team has clearly decided they aren’t trying to win over Judge Chutkan in Washington. And if you can’t charm a judge, the next best thing to do is really antagonize her. Why? Judges are human, and they get annoyed with lawyers. If they can get her to say a few especially antagonistic words, they’ve got some nice decorations for their future recusal motion (assuming they ever find something substantive to argue for recusal on). And if they can lull her into a false sense of meritless legal arguments, they might get a few incorrect rulings that give them some good options for appeal. If the judge sanctions Trump’s lawyers, Trump’s campaign and legal defense fund can fill their coffers from the fundraising. The point is that you’d rather have a judge like your side, but if that’s not an option, hate can also have potential upsides. 

Second, this isn’t the O.J. Simpson trial where the two broke state prosecutors were up against a well-funded dream team on the defense. The special counsel’s team has all the resources of the Department of Justice at its disposal—plenty of seasoned attorneys who have been steeped in each of these two cases for months, any experts that could be helpful at the FBI, a more or less unlimited budget, and no unrelated cases to keep moving like most prosecutors would. The special counsel has enough lawyers to fully and separately staff both cases against Trump at once. 

But Trump’s team? It’s two guys signing the court filings in all these cases. They’ve had far less time to prepare and they’ve got to bounce between three and soon-to-be four ongoing cases, each in a different jurisdiction up and down the East Coast. They said they couldn’t attend a hearing in Washington on Thursday because they had to be in front of Judge Aileen Cannon in Florida for the classified documents case. That is and will continue to be a real problem for them as both of these cases move forward—both in terms of transportation time and preparation needed. 

When My SCIF Comes In

Speaking of Florida and logistical nightmares, there’s another hearing worth mentioning regarding how Trump’s team wants to deal with classified information that is evidence in his case there. 

The defense has agreed that it will only review the physical classified documents in a room known as a sensitive compartmented information facility, or SCIF, designated by the government.* But what if they just want to discuss the case and be able to talk about the documents? The special counsel says they should still have to be in a designated SCIF—the closest of which are at the federal courthouses in South Florida. But Trump’s lawyers want to “redesignate” the space at Mar-a-Lago that once served as a SCIF during Trump’s presidency so they can have those discussions without leaving his house.

Their arguments are pretty compelling. Trump’s movements require a massive entourage. When he came for his arraignment, entire city blocks near the courthouse were shut down, and it disrupted work inside the courthouse as well. It’s not just the Secret Service—local police are needed too. It’s all expensive and annoying. Plus, the media would no doubt camp outside the SCIF, so anytime he wanted to talk to his lawyers about the case, it would literally be national news. 

The special counsel responds that Trump should be treated like any private citizen who would have to travel back and forth to a SCIF on government property. And indeed, it’s not like the former president doesn’t inconvenience everyone when he goes to play golf or campaign. And since when does this guy mind making the news? They also will no doubt note the time and expense in re-creating the Mar-a-Lago SCIF. This ain’t just screwing in a lightbulb and adding a bolt lock to the door. It will take time and money. 

Sarah’s View

Both sides have good arguments on the SCIF problem in Florida. Trump is a private citizen and should be treated as such. But he’s also not a run-of-the-mill criminal defendant. He’s a former president with Secret Service protection and the leading candidate for the Republican nomination (which is relevant because it undoubtedly increases the number of credible threats the Secret Service is dealing with). Adequate access to counsel and time to prepare a defense are pretty bedrock principles when it comes to criminal law. So this one tilts a little toward Trump in my book. 

As for the Washington hearing, there will be a protective order. The question is whether the judge will narrow the special counsel’s request at all to take into account the fact that their defendant is currently running for president and has some unique First Amendment interests. I doubt it. And this means Trump will have to keep track of what he learns from the special counsel and remember not to blurt out those things when he’s in the second hour of a town hall in Iowa waxing poetic about the deep state. Good luck, defense lawyers!

*Correction, August 10, 2023: The Collision originally misreported the full name for the acronym SCIF.

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