Trump’s attempt to intimidate a federal appeals court could ensure his defeat

(Dana Verkouteren / Associated Press)

Trump’s attempt to intimidate a federal appeals court could ensure his defeat

Opinion piece, Elections 2024

Dennis Nagut

January 9, 2024

During arguments Tuesday, a panel of the U.S. Court of Appeals for the D.C. Circuit expressed appropriate skepticism about Donald Trump’s claim to immunity from charges that he tried to overturn the 2020 election. But what happened next may have been even worse for Trump than the hearing itself: The former president refused to rule out violence if the appeals court’s decision went against him, as he seems to think it will are.

There will be chaos in the country, Trump told reporters. It’s like opening a Pandora’s box.

To many, that sounded like an encouragement of lawlessness.

As such dangerous behavior has become almost commonplace in Trump, some of us have begun to ignore it. But it’s a safe bet that the courts won’t.

It is difficult to imagine anything more damaging to one’s prospects in a case than trying to intimidate the judges who are considering the case.

In this case it’s even worse. In real time, Trump reenacted what special counsel Jack Smith accused him of in the indictment on January 6, 2021: inciting violence against the rule of law. And he turned to the judges entrusted with his case, just down the street from their courthouse.

Perhaps it was a knee-jerk retaliatory reaction from a man who can’t bear the thought of being a loser, either in court or in elections. Trump seems unable to tolerate the concept of limitation by law.

Or it could be the deliberate strategy we’ve seen during this presidential campaign: pushing his base to put him back in office and give him an escape card.

But polls show that if Trump is convicted of a crime before the election, his prospects of returning to the White House will plummet to Earth like the meteor that reportedly wiped out the dinosaurs. And if he is tried, it is almost certain that he will be convicted. The evidence Smith’s team has gathered against him is overwhelming.

What he wants to avoid in the coming months is a trial. To do that, he needs the Circuit Court, and more importantly, the Supreme Court, to buy his voidable immunity claim or his even weaker argument that charging and criminally trying him for the same crimes would violate the Constitution.

His goal of getting the Supreme Court to consider his claim and delay the trial is unlikely to be helped by statements like the one he just made outside the courthouse. Judges do not take kindly to defendants who threaten the rule of law, and a thinly veiled call for violence is sure to offend any legal scholar who takes their constitutional role seriously.

Trump has likely hurt himself in another way outside the courtroom: by strengthening one of President Biden’s central arguments against him. Just a few days earlier in Valley Forge, Pennsylvania, Biden drew a defining contrast with his rival in his first campaign speech of the year.

Trump will not do what an American president should do,” Biden said. “He refuses to denounce political violence. … I will say what Donald Trump will not say: political violence is never acceptable in the United States, never, never, never. It has no place in democracy. No.

We can expect Trump to repeat his calls for violence in the coming months. And if one thing could deter independent and undecided voters from casting their ballots for the former president, it could encourage lawbreaking and threaten public safety. Trump’s mouth could prove to be the Biden campaign’s most powerful weapon.

Dennis Aftergut is a former federal prosecutor who is a consultant to Lawyers Defending American Democracy



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