Donald Trump Is A Stochastic Terrorist
And courts are finally starting to notice.
On Friday, the DC Circuit held that Donald Trump’s social media attacks “pose a significant and imminent threat to the functioning of the criminal trial process.” The trial judge “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,” and thus the gag order would be reinstated.
Trump’s monstrous conduct in the ongoing New York civil fraud trial was only briefly mentioned, but it loomed large in the ruling. In the state case, Trump ruthlessly targeted the prosecutor, judge, witnesses, court clerk, and even the judge’s family. Those attacks were intended to precipitate a deluge of threats and harassment, and that’s exactly what they did. That is the very definition of stochastic terrorism.
But the attacks, bad as they are, are simply a part of Trump’s effort to derail the judicial process with his outrageous behavior. He spams the court with garbage motions, uses his giant megaphone to poison the jury pool and intimidate witnesses, and even defies court orders. These flagrant abuses — and his lawyers’ willingness to abet them — turned the New York civil trial into a chaotic spectacle And if courts keep allowing him to run this play, he’ll do the same thing in his four upcoming criminal trials.
The New York Civil Fraud Trial
Practically speaking, this case was over before it even started. In September, Justice Engoron found Trump liable for persistent fraudulent conduct, granted summary judgment (which meant that the evidence was so clear that the prosecutor did not have to prove the fraud) and ordered the Trump Organization to be broken up and sold for parts. Nominally, the AG is still presenting evidence to support a $250 million fine. But with the corporate death penalty already decreed, the trial is functionally a vehicle for Trump to rock the boat hard enough to force a mistrial in hopes of undoing the judgment that will destroy his empire.
In almost daily social media posts, the former president calls AG James “racist” — he means “Black” — and labels the judge a Marxist, his catch-all for “anyone I don’t like.”
On the witness stand, he called James a “political hack” and shook his finger at the judge, shouting “he called me a fraud, and he didn’t know anything about me.”
He attacked witnesses, particularly Michael Cohen, whose testimony before the House in 2018 about Trump’s fraudulent financial statements was the impetus for the investigation.
It is impossible to state how not acceptable it is for a defendant to publicly attack a witness against him. But Trump was so confident he could get away with it that he even claimed to be targeting Cohen when he got caught whining to reporters about “a person who is very partisan sitting alongside of [the judge], perhaps even much more partisan than he is.” This was an obvious attack on the judge’s law clerk, the current focus of Trump’s attempts to undermine this case.
The Law Clerk
On the second day of the trial, Trump posted the name and photo of Justice Engoron’s chief law clerk on Truth Social, falsely labeling her as Senator Chuck Schumer’s “girlfriend.” The judge hit the roof, and Trump’s lawyers were appropriately chastened, assuring the court that their client would remove the post and keep this woman’s name out of his mouth going forward.
But after Trump repeatedly violated the judge’s gag order, Trump’s attorneys Chris Kise, Alina Habba, and Cliff Roberts shifted their strategy. Making a virtue of necessity, they turned the clerk’s supposed “bias” and undue influence over the judge into the centerpiece of their effort to overturn the verdict.
On October 25, all three lawyers made sure to whine about her on the record, so that, three weeks later, they could point to their own complaints as evidence when they moved for a mistrial based on the clerk’s supposed bias:
For example, on October 25, 2023, Mr. Kise described the “considerable tension” caused by her position on the bench and indicated that it is “unusual” for a Principal Law Clerk to sit on the bench. Mr. Robert described his experience in New York State, such that he had never seen a situation where “you’re literally trying the case to two judges” with “notes constantly being passed,” where it “would appear the Court is in consultation with the Principal Law Clerk” with each ruling. Mr. Robert further described that this Court would “appear to be leaning in one direction and then [will] either receive a note or there will be an eye gesture or a roll of the face and something changes and it is of significant concern to [Defendants]. Ms. Habba added, “It is incredibly distracting when there are eye rolls and constant whispering at the bench when I’m trying to cross-examine a witness.
Trump appealed the gag order to the First Judicial Department, braying that the First Amendment gives him an absolute right to paint a target on the back of a civil servant.
In response, appellate counsel for Justice Engoron (the nominal defendant in the appeal) filed an affirmation documenting the avalanche of threats and antisemitic abuse that rain down on the clerk when Trump put her on blast.
Trump responded by targeting the clerk again:
Happy Thanksgiving to ALL, including the Racist & Incompetent Attorney General of New York State, Letitia “Peekaboo” James, who has let Murder & Violent Crime FLOURISH, & Businesses FLEE; the Radical Left Trump Hating Judge, a “Psycho,” Arthur Engoron, who Criminally Defrauded the State of New York, & ME, by purposely Valuing my Assets at a “tiny” Fraction of what they are really worth in order to convict me of Fraud before even a Trial, or seeing any PROOF, & used his Politically Biased & Corrupt Campaign Finance Violator, Chief Clerk [NAME REDACTED], to sit by his side on the “Bench” & tell him what to do …
He even attacked Justice Engoron’s wife, reposting conspiracy loon Laura Loomer’s false claims that she was behind for an anonymous anti-Trump Twitter account. (She wasn’t.)
And Trump’s lawyers were scarcely better. They argued that, by showing up for work, the clerk had voluntarily “taken on a central, public role in a politically charged trial,” and “remain[ed] as a constant and unprecedented presence on the bench, allowing herself to be filmed and then viewed by an audience of millions since the underlying, extraordinarily high-profile trial commenced.” TL, DR: The bitch deserves it.
The First Judicial Department disagreed, vacating the stay and reinstating the gag, at which point Trump announced that it wasn’t even worth it to take the stand in his own defense if the court wouldn’t let him lob ad hominem attacks at a civil servant.
“I HAVE ALREADY TESTIFIED TO EVERYTHING & HAVE NOTHING MORE TO SAY OTHER THAN THAT THIS IS A COMPLETE & TOTAL ELECTION INTERFERENCE (BIDEN CAMPAIGN!) WITCH HUNT, THAT WILL DO NOTHING BUT KEEP BUSINESSES OUT OF NEW YORK, I WILL NOT BE TESTIFYING ON MONDAY. MAGA!” he hollered in a three-post primal scream decrying “THE A.G. THUGS,” “SLEAZEBAG & DISBARRED FORMER LAWYER, MICHAEL COHEN,” and “THE HIGHLY PARTISAN & OUT OF CONTROL JUDGE.”
Because this is a bench trial and there’s no risk that Trump’s shenanigans will prejudice the jury, Justice Engoron has largely ignored Trump’s theatrics. But, given infinite latitude, the grand showman of chaos has taken infinite liberties, turning the trial into a three-ring circus.
Trump’s behavior in New York makes a mockery of the justice system and endangers trial participants, and Trump’s lawyer John Lauro has made it clear that he intends to follow the same playbook in DC.
DC Gag Order
“IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Trump yelled on Truth Social the day after his arraignment in DC on charges of obstructing congress. He followed that up with attacks on multiple potential witnesses, calling for Gen. Mark Milley to be executed, and sneering at "weak" and "delusional" Mike Pence and "gutless pig" Bill Barr.
But these insults pale in comparison to the endless firehose directed at Judge Chutkan and the Special Counsel’s Office.
Prosecutors flagged Trump’s social media posts in their motion for a gag order. They also included evidence of the devastating cost to Trump’s targets, like Atlanta poll workers Ruby Freeman and Shaye Moss, who had to leave their homes after the former president falsely told his followers that they’d tabulated thousands of fraudulent ballots on election night.
In fact, Judge Chutkan herself received at least one death threat from a woman who left a voicemail saying, “Hey you stupid slave n[****]r … If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly bitch. … You will be targeted personally, publicly, your family, all of it.”
That message is only public because the caller was indicted. As the New York affirmation noted, “Judges who receive threats are advised to not make public statements discussing the threats or any security measures that may be in place because doing so could compromise the security measures put in place to protect them and those around them.” Trump and his lawyers are aware of this practice, but have nonetheless taken the absence of evidence as evidence of absence, scoffing at “the purported ‘intimidation’ of the prosecution, the Court, and ‘potential witnesses.’”
Lauro even defended Trump’s attacks on Special Counsel Jack Smith’s wife, who donated to Biden’s campaign.
“In what world, in what case would it be allowable for a criminal defendant to attack a prosecutor's family?” demanded Judge Chutkan.
“He is certainly entitled to describe why he believes this prosecution is politically motivated,” Lauro stammered, adding “He's allowed to do that in unfettered terms, even if it means mentioning a prosecutor's family.”
Judge Chutkan disagreed, issuing a limited gag order which barred Trump from targeting witnesses, court staff, or attorneys in the case. During a stay pending appeal, Trump managed to outdo himself, attacking his former chief of staff Mark Meadows on the very subject of his testimony.
This forced Lauro to defend Trump’s obvious act of witness intimidation as necessary and proper to the administration of justice.
“If the Gag order had been in effect, President Trump would have been unable to respond to, or rebut, the false claims about his interactions with his former chief of staff—an issue that is important to many Americans in connection with the 2024 election,” he argued.
This logic persuaded neither Judge Chutkan nor the DC Circuit, which endorsed much of the gag order last week. The appellate panel removed the ban on Trump attacking Special Counsel Jack Smith, who is arguably the public face of the Justice Department in this matter. And although the court found that Trump “has repeatedly attacked those involved in this case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony,” it pared back the order to permit Trump to attack witnesses personally, just not with respect to their potential testimony.
That’s probably the best it’s going to get, thanks to the First Amendment. But Donald Trump has four criminal trials, and it’s unclear that other courts will impose similar limitations to protect the integrity of those cases.
Georgia, New York, and OH MY GOD Florida
The DC election interference trial is scheduled to begin in March, so obviously it’s top of addled mind for the former president. But he’s already firing up the bullshit cannon in Georgia, where he falsely claimed that Fulton County District Attorney Fani Willis sleeps with gang members. In New York, where Trump is charged with falsifying business records to hide the Stormy Daniels hush money payoff, he lashed out at Justice Juan Merchan’s daughter in an effort to accuse her father of bias-by-affiliation.
Trump clearly intends to run the same play everywhere, aiming his mob at witnesses, their family members and court staff, probing for vulnerable targets as he seeks to undermine the prosecution. He knows that his supporters are armed and dangerous, and he deliberately riles them up and sets them against his enemies. After all, this is someone who sent a dangerous mob to the Capitol in an attempt to overthrow democracy. Perhaps the best we can hope for is that courts take the DC Circuit ruling and the New York gag order as templates, treating it as a settled fact that Trump’s social media posts result in real world danger to their targets and that he knows that perfectly well.
That stochastic terrorism: putting a target on a person so that other people will aim for it. And while many people are loath to call the former president a terrorist, I will. This is terrorism, and judges need to quit muttering about the difficulty of balancing the needs of political candidates and put a stop it before someone gets killed.
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