Washington — Across former President Donald Trump’s four years in the White House, he frequently took to social media to level sharp attacks against his critics and political opponents.
But as the former president and leading candidate for the Republican presidential nomination navigates four different criminal cases brought against him, Trump could now face consequences for his online denunciations if they bump up against the agreed-upon conditions that allowed for his release before the trials begin. The restrictions in his two federal cases imposed by magistrate judges and the state case in Fulton County, Georgia, signed by a judge there warn against intimidating people involved in the matters, such as co-defendants, witnesses, jurors or officers of the court.
“He is doing harm to himself by posting these messages,” Sarah Krissoff, a former federal prosecutor who now works as a defense attorney, told CBS News. “Not only is he risking violations of these court orders and fines and even jail time because of that, he is risking the outcome of these criminal cases.”
The former president is facing a total of 91 counts across the four prosecutions — two in state courts and two in federal courts — brought against him since late March. Trump has denied wrongdoing in each of his cases and instead has blamed federal and local prosecutors for mounting politically charged “witch hunts” that he says aim to derail his 2024 presidential campaign.
Trump has most recently trained his social media ire on special counsel Jack Smith, U.S. District Judge Tanya Chutkan and Fulton County District Attorney Fani Willis. Smith has brought federal charges against Trump in two cases: the first over his handling of sensitive government records recovered from his South Florida resort, Mar-a-Lago; and the second over alleged attempts to thwart the transfer of presidential power after the 2020 election, which is being overseen by Chutkan in Washington, D.C. Trump pleaded not guilty in both cases.
Willis, meanwhile, spent two years investigating Trump over alleged attempts to overturn the 2020 presidential election in Georgia, and brought a sprawling racketeering case against the former president and 18 others last week. Trump is charged with 13 counts, and he has yet to be arraigned.
Trump’s pretrial release conditions in Washington, D.C., prohibit him from communicating about the facts of his federal case with any person known to be a witness, except through his attorneys, and warn in part that it is a crime to obstruct a criminal investigation or intimidate a “witness, victim, juror, informant, or officer of the court.”
But in the wake of his indictment and arraignment, Trump has taken to his social media website Truth Social to call Chutkan “very biased & unfair” and Smith “deranged.” He has also continued to lambast his vice president, Mike Pence, who rebuffed the former president’s calls for him to unilaterally toss out state electoral votes or delay the certification of the 2020 election results.
“I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was ‘too honest,'” Trump wrote on Aug. 5, referencing allegations contained in the charging document. “He’s delusional, and now he wants to show he’s a tough guy.”
In April, Pence testified before the grand jury impaneled as part of special counsel Smith’s investigation into the events surrounding the 2020 election, and the indictment revealed that the former vice president kept contemporaneous notes about his conversations with Trump.
At least one of Trump’s posts, from Aug. 4, garnered the attention of federal prosecutors on Smith’s team. In a filing to Chutkan requesting a protective order governing the disclosure of discovery material, the Justice Department lawyers included an image of the message “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” posted by the former president on Truth Social.
In an Aug. 11 hearing, Chutkan warned Trump’s lawyers that there are limits to what their client can say and reminded them of the conditions of his release while awaiting trial.
“Your client’s defense is supposed to happen in this courtroom, not on the internet,” she said. More “inflammatory” statements about the case would increase her urgency in bringing the case to trial to protect the pool of prospective jurors, the judge said.
“I will take whatever measures are necessary to safeguard the integrity of these proceedings,” Chutkan said.
Some lawyers believe that if Trump were not a former president and candidate for the Republican presidential nomination, he would already have faced severe consequences for his online comments.
“If he was Donald Smith, he would be in jail right now,” said Gene Rossi, a former federal prosecutor. “The argument that we’re treating him unfairly is baloney.”
Repercussions Trump could face for his online comments include fines, a finding of contempt or revoking his bond if he’s found to violate his release conditions, Rossi said. The judge could also impose a gag order that restricts the former president from talking about his case in public if he continues to run afoul of the rules governing his release.
Judges “have wide discretion in issuing orders that protect the integrity of the legal process, to protect what happens in the courtroom when that jury is empaneled and evidence is presented,” Rossi said. “Those priorities far outweigh the de minimis effect on his First Amendment rights.”
While Trump can publicly declare his innocence and denounce the charges against him as “baloney,” he can’t “bash a witness that’s been listed. He doesn’t have the right to go to a rally and read grand jury transcripts. He doesn’t have that right, period,” Rossi said.
Still, Trump’s lawyers face a tall task in reining in his social media comments, Krissoff said, as there is a “long history of people trying to quiet him, and he can’t be quieted.”
Indeed, the former president’s lawyers seem to recognize the difficulties of limiting their client’s public criticisms of his prosecutions and those involved.
“With President Trump, because of the campaign and I would say because of his personality, it’s impossible for him not to speak out on the issues. So it does present unique circumstances,” John Lauro, who is representing Trump in the federal case involving the 2020 election, said in an episode of the podcast “For the Defense with David Oscar Markus” published Aug. 6.
Lauro did not return a request for comment. One Trump legal team source said in June that they were concerned about even basic protective order restrictions, because “we were worried that if Trump isn’t allowed to talk about the evidence, he’ll just do it anyway.”
Amplifying concerns about the impacts of Trump’s rhetoric on social media is the arrest of a Texas woman who left a threatening voicemail for Chutkan on Aug. 5. saying, in part, “You are in our sights. We want to kill you,” according to a criminal complaint.
The woman called Chutkan, who is Black, a racial slur and warned, “If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b***h,” according to the filing.
“It is not speculation for Judge Chutkan to conclude that vitriolic social posts by the president of the United States can rile up his supporters who have drunk the Kool-Aid and think that everything’s a witch hunt and there’s the deep state. She already has evidence that this could lead to death threats against me, Judge Chutkan,” Rossi said. “So he has to be very careful that there isn’t a hearing to show cause as to why she should either revoke his bond, severely limit his bond, or hold him in contempt and put even more stringent responsibilities on his attorneys.”
While the limits imposed in his federal case in Washington generally prohibit the intimidation of witnesses, victims, or officers of the court, the conditions agreed to by Trump’s lawyers and Willis in Fulton County specifically mention posts to social media. As part of the consent bond order negotiated earlier this week, the former president is barred from intimidating or making “direct or indirect” threats against any of his 18 codefendants, witnesses, or alleged victims, including through social media posts or sharing others’ content online.
Before the grand jury returned the 41-count indictment on Aug. 14, the former president took aim at Geoff Duncan, the former lieutenant governor of Georgia, and said he “shouldn’t” testify before the panel.
“I barely know him but he was, right from the beginning of this Witch Hunt, a nasty disaster for those looking into the Election Fraud that took place in Georgia,” Trump wrote, calling Duncan a “loser.”
He called Willis “crooked, incompetent & highly partisan” in a Truth Social post Monday, and a “Radical left, lowlife district attorney” in a message on the platform Thursday, before he surrendered to authorities in Fulton County and was booked on 13 charges in the election case.
Steven Sadow, Trump’s lawyer in the Fulton County case, declined to comment when asked whether he’s concerned Trump’s public statements or social media posts could lead to judicial repercussions, telling CBS News in an email “my work will be done in court.”
Krissoff, the defense attorney, noted that all of Trump’s online statements can be used against him and possibly harm his case.
“He’s trying to walk the line between challenging the witnesses and challenging the case against him, challenging the prosecutors, but not outwardly trying to influence their actions,” she said. “But some of the posts that have already hit, it could certainly be inferred as threats or witness intimidation or efforts at obstruction. As time goes on, if there’s a pattern of those, then the inference gets even stronger.”
There is a risk new obstruction charges related to his recent conduct could be brought, Krissoff said.
“Your First Amendment rights are not unfettered. You can’t commit a crime with your words or encourage others to commit a crime. There’s a lot of things you can’t say in public,” she said. “It gets muddier when you’re in the midst of an election, but I think we may have a civics lesson on our hands for what are the outer edges of permissible speech here, because I think he really pushes the boundaries.”
Graham Kates contributed to this article.
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