“His statements could be used against him”: Expert warns Trump’s rhetoric “could backfire” in court

Former President Donald Trump reposted an ominous video on his Truth Social platform last week in which he can be heard making a threat against someone. 

“If you f**k around with us, if you do something bad to us, we are going to do things to you that have never been done before,” Trump said in the audio clip.

The original audio is from a 2020 interview in which the former president discusses Iran with conservative commentator Rush Limbaugh. However in the reposted clip, the audio omits mention of Iran and instead plays over a black-and-white image of Trump’s face and his 2024 campaign logo. MAGA.com, which produced the video, captioned its post “We aren’t afraid of them.”

“President Trump has made similar remarks on social media and during rallies, so this may be part of a strategy to rile up his political base and have others put pressure on the special counsel and other legal teams investigating his past conduct,” Javed Ali, an associate professor of practice at the Gerald R. Ford School of Public Policy, told Salon. 

Trump promoted the video on Truth Social ahead of a possible third indictment, this time in special Jack Smith’s investigation into Jan. 6 and efforts to overturn the outcome of the 2020 election. 

For Trump, who frequently publicizes his legal troubles and rages over ongoing investigations, the threats aren’t anything new. He has a history of ranting on social media following any legal scrutiny he faces.

“To be prosecutable, a communication must amount to a ‘true threat,’ that is, a threat to commit a specific harm against a particular individual or group,” former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. “Although Trump’s rhetoric is dangerous, it likely does not yet cross that legal line.”

Last summer, after the FBI conducted a search of Mar-a-Lago, Trump took to Truth Social saying: “Prosecutorial misconduct and Weaponization, the likes of which [have] never been seen before, is taking place at many different Radical left Democrat levels. I don’t know how much more our Country will be willing to withstand?”

Then in December, he employed similar rhetoric, threatening that “THE PEOPLE OF THIS COUNTRY AREN’T GOING TO TAKE IT MUCH LONGER.”

Some of his threats have gone as far as warning of “potential death and destruction” while Trump was being investigated by Manhattan District Attorney Alvin Bragg for making hush-money payments to adult film star Stormy Daniels in 2016. 

Following his repeated threats against Bragg, in which the former president called him a “Soros backed animal” and encouraged his supporters to “protest” his widely anticipated arrest, the DA’s office received a death threat letter with suspicious powder, which was later determined non-hazardous.

While similar behavior hasn’t taken place in the grand jury investigation yet, the judge overseeing the case could have other issues with the former president’s conduct. 

“The judge is likely to have a big problem with Trump if he starts saying publicly that the evidence being presented in court is not the whole story, because that would taint the jury pool and allow potential jurors to question the integrity of the trial itself,” former Los Angeles County prosecutor and criminal defense attorney with El Dabe Ritter Trial Lawyers, Joshua Ritter, told Salon.  

As a result, the judge assigned the case could issue a gag order in the case, which would prevent Trump from commenting about evidence or parties, he added. 

“The judge would have to show a reason for the gag order, because it involves infringing on a person’s constitutional rights and judges don’t take that lightly,” Ritter said. “Even with all Trump’s bravado and bloviation, I don’t think we’ve gotten there yet where a gag order is necessary.”

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Trump has already been indicted in New York on charges related to allegedly falsifying business records in connection with a hush money payment scheme as well as in the classified documents case. 

But this hasn’t deterred him from running for the Republican nomination for president. His legal team has even attempted to delay many of his legal proceedings until after next year’s election. 

“If the prosecution of Donald Trump in the documents case or any other case against him becomes centered on his character and how he tries to use his speech to inflame others, then I think his latest statements may become another example of that,” Ritter said. “Especially in the Jan. 6 investigation, which seems to be centered on Trump’s rhetoric, if he continues to double down on that rhetoric it could backfire on him in court. His statements could be used against him.”