Threats and Harassment of Witnesses

Threats and Harassment of Witnesses

¶A significant challenge that the Office faced after Mr. Trump's indictment was his ability and willingness to use his influence and following on social media to target witnesses, courts, and Department employees, which required the Office to engage in time-consuming litigation to protect witnesses from threats and harassment.

¶Mr. Trump's resort to intimidation and harassment during the investigation was not new, as demonstrated by his actions during the charged conspiracies. A fundamental component of Mr. Trump's conduct underlying the charges in the Election Case was his pattern of using social media-at the time, Twitter-to publicly attack and seek to influence state and federal officials, judges, and election workers who refused to support false claims that the election had been stolen or who otherwise resisted complicity in Mr. Trump's scheme. After Mr. Trump publicly assailed these individuals, threats and harassment from his followers inevitably followed. See ECF No. 57 at 3 (one witness identifying Mr. Trump's Tweets about him as the cause of specific and graphic threats about his family, and a public official providing testimony that after Mr. Trump's Tweets, he required additional police protection). In the context o_f the attack on the Capitol on January 6, Mr. Trump acknowledged that his supporters "listen to [him] like no one else."²⁶⁰²⁶⁰ SCO-04958191 at 7 (CNN Town Hall Tr. 05/10/2023); SCO-04976309 at 13:28-14:35 (CNN Town Hall Video 05/10/2023).

¶Representative Perry a copy of the contents of his phone so that he had an opportunity to claim the Speech or Debate privilege over the materials before the Government accessed them. Id. After Representative Perry did so, and after litigation in both the district court and the D.C. Circuit, see generally id.; see also In re Sealed Case, No. 23-3001, Doc. 2031508 (D.C. Cir. Dec. 14, 2023), and In re Scott Peny Cell Phone Search Warrant, No. 22-sc-2144, Memorandum Opinion at 1 (D.D.C. Dec. 19, 2023), https://www.dcd.uscourts.gov/sites/dcd/files/22-sc-2 l44%20- %200pinion.pdf (https://perma.cc/5PPD-JH68], the Government obtained records-including encrypted messages between Representative Perry and Co-Conspirator 4-that it intended to use at trial prior to the Supreme Court's decision on presidential immunity. See, e.g., SCO-12946533 (Signal messages between Co-Conspirator 4 and Perry 01/02/2021). Irrespective of that decision, the records would have been admissible in a trial of Mr. Trump's co­ conspirators.

¶The same pattern transpired after Mr. Trump's indictment in the Election Case. As the

¶D.C. Circuit later found, Mr. Trump "repeatedly attacked those involved in th[e] case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony," Trump,⁸⁸⁸⁸ See ECF No. 252 at 67 & n.363; SCO-00014442 at 38-39 (Pence, So Help Me God pp. 450-451); SCO-00007167 at 52-53; SCO-00016118 at 75-76. F.4th at 1010. Those attacks had "real-time, real-world consequences," exposing "those on the receiving end" to "a torrent of threats and intimidation" and turning their lives "upside down." Id at 1011-1012. The day after his arraignment, for example, Mr. Trump posted on the social media application Truth Social, "IF YOU GO AFTER ME, I'M COMING AFTER YOU!" Id. at 998. The next day, "one of his supporters called the district court judge's chambers and said: 'Hey you stupid slave n[****]r[.] If Trump doesn't get elected in 2024, we are coming to kill you, so tread lightly b[]h. * * * You will be targeted personally, publicly, your family, all of it."' Id. 261 Mr. Trump also "took aim at potential witnesses named in the indictment," id. at 998-999, and "lashed out at government officials closely involved in the criminal proceeding," as well as members of their families, id. at 1010-1011.

¶To protect the integrity of the proceedings, on September 5, 2023, the Office filed a motion seeking an order pursuant to the district court's rules restricting certain out-of-court statements by either party. See ECF No. 57; D.D.C. LCrR 57.7(c). The district court heard argument and granted the Office's motion, finding that Mr. Trump's public attacks "pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment." ECF No. 105 at 2. Because no "alternative means" could adequately address these

¶"grave threats to the integrity of these proceedings," the court prohibited the parties and their counsel from making public statements that "target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court's staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony." Id at 3. The court emphasized, however, that Mr. Trump remained free to make "statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that [he] is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of[his] current political rivals." Id. at 3.

¶Mr. Trump appealed, and the D.C. Circuit affirmed in large part, finding that Mr. Trump's attacks on witnesses in this case posed "a significant and imminent threat to individuals' willingness to participate fully and candidly in the process, to the content of their testimony and evidence, and to the trial's essential truth-finding function," with "the undertow generated by such statements" likely to "influence other witnesses" and deter those "not yet publicly identified" out of "fear that, if they come forward, they may well be the next target." Trump,⁸⁸⁸⁸ See ECF No. 252 at 67 & n.363; SCO-00014442 at 38-39 (Pence, So Help Me God pp. 450-451); SCO-00007167 at 52-53; SCO-00016118 at 75-76. F.4th at 1012-1013. Likewise, "certain speech about counsel and staff working on the case poses a significant and imminent risk of impeding the adjudication of th[e] case," since "[m ]essages designed to generate alarm and dread; and to trigger extraordinary safety precautions, will necessarily hinder the trial process and slow the administration ofjustice." Id at 1014.

¶The court of appeals explained that the district court's order "involve[ d] the confluence of two paramount constitutional interests: the freedom of speech guaranteed by the First Amendment and the federal courts' vital Article III duty to ensure the fair and orderly administration of justice in criminal cases." Id at 996. Balancing these interests, the court explained, required consideration of three related questions: "(l) whether the Order is justified by a sufficiently serious risk of prejudice to an ongoing judicial proceeding; (2) whether less restrictive alternatives would adequately address that risk; and (3) whether the Order is narrowly tailored, including whether the Order effectively addresses the potential prejudice." Id. at 1007. Because "the record amply support[ed]" the district court's finding that, "'when [Mr. Trump] has publicly attacked individuals including on matters related to this case, those individuals are consequently threatened and harassed,"' id at 1012 (quoting ECF No. 105 at 2), and because "[ n]o less-speech-restrictive alternative could viably protect against the imminent threat to the participation of witnesses, trial participants, and staff in this criminal matter, or the full, fair, and unobstructed receipt of relevant evidence," id. at 1017, the court affirmed the decision to "impose[] some limitation on trial participants' speech," id at 1016. Indeed, "[g]iven the record in this case, the [district] court had a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process." Id at 1014. The court of appeals therefore affirmed the district court's order to the extent that it prohibited parties and their counsel from making "public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding," or "public statements about-(1) counsel in the case other than the Special Counsel, (2) members of the court's staff and counsel's staffs, or (3) the family members of any counsel or staff member-if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel's or staff's work in this criminal case, or with the knowledge that such interference is highly likely to result." Id. at 1027-1028. To ensure that going forward the order

¶was as narrowly tailored as possible, the court vacated the district court order "to the extent it cover[ed] speech beyond those specified categories." Id. at 1028.