Trump Chooses Violence

Robert DeNiro in The Untouchables (Paramount Pictures 1987)

In the movie The Untouchables, there is a gruesome scene in which Robert DeNiro, playing the mob boss Al Capone, beats a man dead with a baseball bat.

I couldn’t help but think of that scene when I saw Donald Trump’s post on Truth Social yesterday.

It’s difficult to make sense of such imagery without outrage clouding analysis, let alone put it and Trump’s other threats into meaningful legal context, but it remains important that we try to do so. As I explain below, Trump’s actions are not just dangerous; his lawyers should be telling him in no uncertain terms that they could carry real legal consequences as justice finally catches up to him.

Threatening a prosecutor is a crime

As senior Brookings Institute fellow and CNN legal analyst Norm Eisen noted, threatening a prosecutor is a crime in the state of New York, and pretty much everywhere else. It is, in fact, at least several crimes, three of which he listed immediately:

Harassment in the first degree NYPL 240.25; 

menacing in the second degree NYPL 120.14; 

stalking in the fourth or third degree NYPL 120.45 & 120.50

The law says, for example, that someone has committed the crime of “menacing” in the second degree in New York if he or she “intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon.”

And as one veteran legal analyst keenly observed, courts have held that “there is no requirement that a dangerous instrument, such as a baseball bat, be brandished, as opposed to displayed” and that “to support a conviction, [m]enacing requires no physical contact, actual attempted or threatened, but only an intent to place another individual in reasonable fear.” (Emphasis mine.)

There is little doubt to any reasonable observer what Trump meant when he posted that image of himself wielding a bat next to Alvin Bragg’s head while standing behind him looking menacing. Nor is there any doubt over what he intended by posting it to his followers: It is stochastic terrorism, plain as day, meaning he is calling upon unknown third parties to do this violence for him. And he has put Bragg on notice.

Trump is inciting national-level violence

In addition to direct threats against a sitting prosecutor on his own criminal case, Trump posted late last night about “potential death & destruction” that “could be catastrophic for our Country” in the event that “such a false charge” were brought against him, calling Bragg a “degenerate psychopath that truely [sic] hates the USA!” 

Trump also dehumanized Bragg in separate posts, calling him “human scum” who would create “years of hatred, chaos and turmoil” and a “Soros-backed animal”—managing to combine antisemitism and racism into a single, succinct attack. 

Trump intends to make it easier and more justifiable for someone racist, antisemitic, and/or unstable to attack anyone who is seen as helping Bragg achieve an indictment against him. Stochastic terrorism is difficult to prosecute because there is no direct link between the speaker and the assailant, so causality is tricky. But actual calls for physical violence can sometimes overcome whatever First Amendment protections otherwise would exist. That’s when free speech crosses over to illegal incitement.

Condemnation, at least from outside the GOP, has been swift. Law professor Jennifer Taub called Trump’s baseball bat image a “threat” that was an “obstruction of justice” and “a dangerous call to violence.” She added, “Everyone needs to speak out.”

On his morning news show, MSNBC’s Joe Scarborough and his guests were stunned, agreeing that these after-midnight posts showed Trump has “lost control,” and that he is “scared to death” of being arrested and “melting down”—all over a potential charge that on its own could just be a misdemeanor. They agreed that if any of them had said these things and threatened a prosecutor, they would be arrested.

What could this mean for Trump legally?

To pull such a violent threat on the eve of his own indictment could backfire very badly on the ex-president. Criminal charges could be added to the existing potential charges, for example, putting him at far greater risk of being convicted for very serious crimes. And his allies in the GOP might have a far harder time excusing this type of criminal behavior, though I’m sure they could find a way. So far, their silence is already quite telling.

There are steps a judge in the case could take as well. Trump’s threats could now serve as a basis for a number of precautionary measures, everything from keeping the jury anonymous (which was already done for security reasons in the Jean Carroll rape-defamation case) to imposing a gag order over Trump during the course of the case, to imposing stiff bail or even denying it outright. Were this any other likely defendant, such a post indeed would be strong reason to deny bail, but in this case the cynic in me believes Trump probably will still be released on his own recognizance—though at this point he really ought not to be. Were Trump to draw a judge who isn’t afraid of taking on the ex-president and his violent followers, he’s provided a very good reason to the judge to come down hard.

There’s an irony as well in Trump posting an image that summons the violence of Al Capone in The Untouchables. That film was about a group of idealistic law enforcement officers who sought to bring a dangerous mob boss to justice. Ultimately, they use a simple tax evasion case to bring him down and send him to prison for eleven years.