Our recent book is titled Divided We Stand: The 2020 Elections and American Politics. Among other things, it discusses the state of the parties. The state of the GOP is not good. Trump and his minions falsely claimed that he won the election, and have kept repeating the Big Lie. And we now know how close he came to subverting the Constitution.
Evidence of the defendant’s post-conspiracy embrace of particularly violent and notorious rioters is admissible to establish the defendant’s motive and intent on January 6—that he sent supporters, including groups like the Proud Boys, whom he knew were angry, and whom he now calls “patriots,” to the Capitol to achieve the criminal objective of obstructing the congressional certification. In addition, his statements in this time period agreeing that he then held, and still holds, enormous influence over his supporters’ actions is evidence of his knowledge and intent to obstruct the certification, as he chose not to exercise that influence to mitigate the violence on January 6. Perhaps most importantly, the defendant’s embrace of January 6 rioters is evidence of his intent during the charged conspiracies, because it shows that these individuals acted as he directed them to act; indeed, this evidence shows that the rioters’ disruption of the certification proceeding is exactly what the defendant intended on January 6. And finally, evidence of the defendant’s statements regarding possible pardons for January 6 offenders is admissible to help the jury assess the credibility and motives of trial witnesses, because through such comments, the defendant is publicly signaling that the law does not apply to those who act at his urging regardless of the legality of their actions.
Mr. Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process in this case in two respects.
Many of former President Trump’s public statements attacking witnesses, trial participants, and court staff pose a danger to the integrity of these criminal proceedings. That danger is magnified by the predictable torrent of threats of retribution and violence that the district court found follows when Mr. Trump speaks out forcefully against individuals in connection with this case and the 2020 election aftermath on which the indictment focuses. The district court appropriately found that those threats and harassment undermine the integrity of this criminal proceeding by communicating directly or indirectly with witnesses and potential witnesses about their testimony, evidence, and cooperation in the justice process. They also impede the administration of justice by exposing counsel and members of the court’s and counsel’s staffs to fear and intimidating pressure. The First Amendment does not afford trial participants, including defendants, free rein to use their knowledge or position within the trial as a tool for encumbering the judicial process.1