By Sara Kropf
In case you’ve been living under a rock recently, former President Donald Trump was indicted on 37 federal criminal charges relating to classified documents and obstruction of justice. I’m not going to deny that I enjoy this spectacle in many respects, not the least of which is that being someone who knows a bit about this process is suddenly *kind of* cool.
DOJ has treated Trump a little bit differently than other defendants in two important ways. And those differences may be more interconnected than at first glance.
First, DOJ did not ask for the standard pretrial release provision that Trump not contact potential witnesses in the case. Second, DOJ provided Trump with a list of potential witnesses for trial and the grand jury testimony of certain potential witnesses shortly after arraignment.
Why does this all matter? Well, I think DOJ knows Trump will be like the proverbial moth near a flame.
(No) Broad No-Contact Provision
If a federal court releases someone pending trial, which is common in white-collar cases, there is usually a no-contact provision in the release order. A typical provision would order the defendant to have “no contact with witnesses unless in the presence of counsel.” These provisions are meant to reduce the risk of witness tampering or witness intimidation by the defendant. They restrict all communications by the defendant to a witness, even about matters completely unconnected to the case.
The penalty for violating a no-contact order is severe. If the government discovers that a defendant on pretrial release has contacted a witness, then the government can move for revocation of release. If the court agrees, then the defendant is “stepped back,” meaning thathe’s held in prison until trial.
Particularly in complex white-collar cases, a client in prison makes preparing a defense far more complicated. No more quick calls or scheduled meetings in the office, and no more emailing documents and draft court pleadings back and forth. Suddenly, you have to schedule visits to prison to talk face-to-face and schedule privileged calls through your client’s prison counselor. Email communications are non-existent since they occur through a system that can be monitored by the government. (Yes, even email with counsel.)
No-contact orders are challenging because the government often will not provide a list of potential witnesses that your client cannot contact. While some potential witnesses are obvious, some are not. We always advise our clients not to talk to anyone about the case—even during the investigation and before indictment. The last thing we need is for an aggressive prosecutor to view an innocent conversation about the case as witness tampering.
For Mr. Trump, DOJ did not push for a no-contact provision. The most common speculation was that DOJ was worried that a provision like that would infringe on Trump’s campaign activities—and thus the First Amendment. The magistrate judge was skeptical about DOJ’s view, however, and imposed a limited no-contact order that prohibits contact with witnesses “about the facts of the case.” Here’s a screenshot of the provision from the release order:
DOJ Provides Witness List and Jencks Very Early in the Game
In a typical federal white-collar case, the government will provide its list of potential trial witnesses under the court’s pretrial scheduling order—maybe a few weeks before trial. (This is all very jurisdiction-dependent.) It’s very unusual to get a witness list within a few weeks of arraignment, which is what happened for Trump.
DOJ also provided Trump with early access to what is called “Jencks material.” The Jencks Act (18 U.S.C. § 3500) requires the government to turn over “statements” by any witness who testifies in a criminal trial. This would include grand jury testimony. Technically, the statute requires this disclosure only after the “witness has testified on direct examination in the trial of the case.” In many jurisdictions, though, the court will order production of Jencks material by some date certain a few weeks before trial.
Keep in mind that not all potential witnesses in Mr. Trump’s case testified before the grand jury. There almost certainly are people on the potential witness list for whom there is not any grand jury testimony in the Trump case.
Grand jury testimony is very helpful to a defendant. It can be a roadmap to how the government will use each witness at trial. Since you don’t get a chance to take the deposition of government witnesses in a criminal case, the only ways to learn what the person will say at trial are (1) to interview them, which happens rarely since government witnesses usually don’t talk to defense counsel; (2) to read grand jury testimony provided by the government under Jencks; or (3) to review the case agents’ memos/302s of the witness that are produced in discovery.
Why Is DOJ Doing This?
I have a few thoughts on why DOJ is handling Trump’s case in a unique fashion.
First, and most obvious, the defendant is Donald Trump. Whatever you think of him (and, oh, I have many thoughts), the guy is the former POTUS. This case is never going to be “typical” in any way, shape, or form. He will get a lot of special treatment. The scrutiny of this case will encourage DOJ to be as fair as possible.
Second, DOJ is smartly narrowing the reasons for a delay of the trial and eliminating possible arguments for appeal. If DOJ waited until very close to trial to disclose its witness list and Jencks material, Trump’s lawyers—like all lawyers, except maybe those of us who practice in EDVA’s rocket docket—would seek a continuance of trial to prepare. DOJ is also narrowing any issues for appeal. Early, complete discovery takes away a due process argument down the road.
Third, and I have zero doubt this is part of the thinking, DOJ just handed Trump everything he needs to shoot himself in the foot. He now knows who may testify against him. He knows what they may say about him. He can legally contact them for non-case-related reasons.
From everything we know about Trump, it will be nearly impossible for him to resist calling a witness to convince them not to testify a certain way. After all, this is the guy who called the top elections official in Georgia to tell him, ““I just want to find 11,780 votes.”
Can Trump resist witness tampering? Moth, meet flame.
In the end, even if Trump violates the limited no-contact order, I seriously doubt he’d be stepped back like a typical defendant would be. He’ll maybe get home detention. But DOJ would love to tack on a witness tampering charge to the existing indictment. Nothing screams “guilty!” more than someone who tampers with a witness after indictment .
To be clear, a cooperating witness will wear a wire, will let the FBI record his phone calls with Trump, will hand over any emails or texts from Trump—all of it. Even if Trump realizes this risk, can he resist calling a witness about the case? If I were his lawyer, I’d be extremely concerned about my client’s natural tendencies on this front.
Just for fun, here’s what 18 U.S.C. § 1512 (Tampering with a witness, victim, or an informant) says:
(b)Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1)influence, delay, or prevent the testimony of any person in an official proceeding;
(2)cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D )be absent from an official proceeding to which such person has been summoned by legal process; or
shall be fined under this title or imprisoned not more than 20 years, or both.
Wait for it.