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Aug 7, 2023, 7:16am EDT
politics

Trump’s social media posting is already becoming a problem for his defense

REUTERS/Jane Rosenberg
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The News

It’s been a while since one of Donald Trump’s social media posts had quite as many immediate consequences as his Friday Truth Social promise: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Here’s the fallout you should be on top of, as well as other legal updates:

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Prosecutors are already using Trump’s social media posts in court

Just hours after Donald Trump threatened vengeance against his various foes in a social media post Friday afternoon, federal prosecutors asked for a protective order that would bar the former president from sharing evidence in the case publicly.

The limit was necessary, special counsel Jack Smith argued, in light of Trump’s previous social media comments aimed at witnesses, judges, and attorneys in cases against him. As an example, they included a screenshot of his post from earlier in the day.

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“If the defendant were to begin issuing public posts using details — or, for example, grand jury transcripts — obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case,” Smith wrote.

Trump’s attorneys have vowed to fight the order, which (like the rest of the government’s case) they’ve characterized as an assault on free speech. “We will not agree to keeping information that is not sensitive from the press,” lawyer John Lauro told CNN Sunday. They’ll have to work quickly: Judge Tanya Chutkan denied a request from Trump’s team to extend their response deadline beyond Monday.

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Trump’s team really wants the case moved to West Virginia

A few days back, Trump suggested that his trial should be moved out of Washington, D.C. (which is full of Democrats) to “an impartial Venue” such as West Virginia (where he got more than two thirds of the vote in 2022). Talking to CBS Sunday, Lauro confirmed he’d motion for a venue switch, and said the Mountain State would be ideal. “Absolutely, we would like a diverse venue, a diverse jury,” he said.

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Most experts have suggested that Trump will have a hard time getting a change of venue given the strong legal presumption that criminal cases should be tried where the alleged activity occurred and that jury selection can address potential biases. Many Jan. 6 defendants already attempted and failed to have their trials moved. However, Paul Blumenthal and Igor Bobic offer an interesting note: The Supreme Court has never actually considered the question of whether a city could be too Democratic to hold a fair trial for a Republican, or vice versa. Maybe we’ll finally get a precedent.

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The “aspirational” defense

Lauro also added a new wrinkle to Trump’s free speech defense: He didn’t “direct” Mike Pence (or anyone else) to do anything illegal; he just asked “in an aspirational way.”

“Asking is covered by the first amendment,” he added.

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University of Pennsylvania professor Seth Kreimer told me case law wasn’t likely on Trump’s side there (the Supreme Court has made it clear that asking people to do illegal things is illegal). He compared it to arguing a mob boss asked for a hit in an “aspirational way” by suggesting they wanted to “take care of” someone. “Does anyone imagine this is protected by the First Amendment?” he said.

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A ‘technical violation’

A related defense from Lauro: The request to Pence wasn’t asking him to commit a crime, but to take Trump’s side in a Constitutional dispute in line with prior battles over presidential and congressional authority. “A technical violation of the Constitution is not a violation of criminal law,” Lauro said on NBC’s Meet The Press.

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