Saturday, August 05, 2023

Revoking Bail

A former NFL offensive lineman in seven words has an idea which few if any of the alleged legal experts on our favorite center-left cable news networks (or, obviously, Fox News) ever give voice to.

Obviously, it's not quite that easy, which could be explained by the innumerable lawyers- guests or hosts- on MSNBC or CNN, if any of them cared to address the issue at all.  Fortunately, we still have a remnant of print media to tell us what we won't hear on broadcast media. An Associated Press  reporter notes

Prosecutors asked U.S. District Court Judge Tanya Chutkan to issue a protective order in the case a day after Trump pleaded not guilty to charges of trying to overturn his 2020 election loss and block the peaceful transition of power. The order — which is different from a so-called "gag order" — would limit what information Trump and his legal team could share publicly about the case brought by special counsel Jack Smith.

Such protective orders are common in criminal cases, but prosecutors said it's "particularly important in this case" because Trump has posted on social media about "witnesses, judges, attorneys, and others associated with legal matters pending against him."

A protective order is necessary, though probably not sufficient. A gag order should apply to the former President. Alan Feuer and Maggie Haberman provide critical context when they write

At a court hearing in Manhattan in April, Justice Juan M. Merchan, who is overseeing Mr. Trump’s state prosecution on charges stemming from a hush payment to a porn actress, warned the former president to refrain from making comments that were “likely to incite violence or civil unrest.”

Justice Merchan’s admonition came after Mr. Trump posted on Truth Social saying that “death and destruction” could follow if he were charged in the case in Manhattan.

That same month, Judge Lewis A. Kaplan, who was presiding over a federal rape and defamation lawsuit filed by the writer E. Jean Carroll against Mr. Trump, criticized the former president for posting messages about the case. The ones he had already written were “entirely inappropriate,” the judge said.

Mr. Trump had derided the case on social media as a “scam” and personally mocked Ms. Carroll.

The former president has often ignored such warnings and continued to post threatening or spiteful messages with impunity.

After the hearing in front of Justice Merchan, Mr. Trump returned to Florida and to his customary practice, calling the district attorney who brought the New York charges against him, Alvin L. Bragg, a “criminal,” and Justice Merchan “a Trump-hating judge with a Trump-hating wife and family.”

Days after Judge Kaplan’s admonition, Mr. Trump attacked him, too, saying on a trip to one of his golf courses in Ireland that the judge was “extremely hostile.”

So Judge Merchan in Bragg's Manhattan's case directed Trump to avoid remarks "likely to incite violence or civil unrest," after which Trump publicly condemned the District Attorney "a Trump-hating judge with a Trump-hating wife and family."  In the civil case brought by E. Jean Carroll, Judge Kaplan criticized Trump for "entirely inappropriate" comments, after which Trump in Ireland attacked the Judge as "extremely hostile."

Neither judge took action against the defendant, presumably because no order was entered- even requested- barring him from making prejudicial or incendiary remarks about a pending case.

Nothing was done because Donald Trump, who already has assailed the indictment filed in the District of Columbia on 8/1/23 as "a witch hunt," is held to lower standards than is everyone else. The "protective order" would

prevent Trump and his lawyers from disclosing materials provided by the government to anyone other than people on his legal team, possible witnesses, the witnesses’ lawyers or others approved by the court. It would put stricter limits on “sensitive materials,” which would include grand jury witness testimony and materials obtained through sealed search warrants.

There is nonetheless danger in granting the request. Judge Chutkan must be willing to enforce any such order. And as Mr. Elliot hints at, enforcement probably would entail revoking bail.

That would lead directly to the arrest of Donald J. Trump. It would not be like any of the arrests the ex-President may or may not have sustained thus far. Presumably, Trump would be placed inside a jail cell.

Oh, it's possible that a protective order is issued, the defendant violates it, and is brought to court for a Susan Collins-style stern warning, a fine Trump would never pay, or other such action which allows the judge feel she is accomplishing something and delights the anti-Trump lawyers paraded before the audiences of MSNBC and CNN.  Maybe it would be a half-measure such as excites this frequent contributor at MSNBC:

Explain it to the Judge! (And then what?)  Place him in custody! (Been there, done that.)

If Judge Chutka issues an order in this manner and it is violated, there is only one remedy which Donald Trump wouldn't, in private, laugh about. It would be placing him inside a jail cell, just as would happen to any other American who has been warned by judges previously about this behavior and has with forethought chosen a different course.   

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