Former federal prosecutor Glenn Kirschner on Wednesday argued a judge may be “getting sick of” Donald Trump’s “bad behavior” after the former president “declared a witness ‘shouldn’t’ testify” before a grand jury convened by Fulton County District Attorney Fani Willis.
Laying out a primer on pretrial conditions in federal court, Kirschner writes:
In the federal system, there are a number of laws that guide judges in deciding when they can and/or should detain a defendant pending trial. The Federal Bail Reform Act of 1966 established a presumption in favor of pretrial release. Congress further fine-tuned the law by amending the act in 1984, requiring a judge to release a defendant pending trial unless the judge concludes that detention is necessary to reasonably assure the defendant will not flee and/or endanger others. When a judge decides to release a defendant pending trial, they will set conditions of release that, if violated, can result in sanctions, up to and including pretrial detention.
Kisrchner says he “ attended Trump’s arraignment hearing” in Washington D.C., where the former president was indicted on federal charges in special counsel Jack Smith’s Department of Justice investigation into efforts to overturn the 2020 presidential election. The former federal prosecutor notes Magistrate Judge Moxila A. Upadhyaya “said something” at the arraignment “that caught [his] attention."
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[Upadhyaya] told Trump that his “most important condition” of release was not committing a state, federal or local crime while on release. If Trump were to do so, she warned, a warrant could be issued for his arrest and he could be detained pending trial.
Turning to Trump’s Monday morning Truth Social post where he appeared to warn Rep. Jeff Duncan (R-SC) not to testify before the Fulton County, GA grand jury, Kirschner argues Trump is “taking a page out of the ‘Witness Tampering for Dummies’ playbook.”
“Here we have Trump publicly telling a witness who he knew was scheduled to testify before a grand jury investigating his alleged crimes, that the witness should not testify,” Kirschner says, calling it an “apparent violation of Georgia state law” and “a violation of Trump’s pretrial release conditions in his D.C. case.”
According to Kirschner, there is a “relatively low evidentiary burden of proof” when a “person violates a condition of pretrial release in a federal case.” Here, Kirschner claims, is where Trump “has received different and far more favorable treatment in his criminal cases as compared to other defendants.”
The former federal prosecutor writes:
He stands indicted in four separate felony cases, spread across three jurisdictions, both state and federal. And yet, there has not even been a hint of any consideration of pretrial detention for a man criminally charged with unlawfully retaining classified documents, obstructing justice, violating our nation’s espionage laws, and seeking to thwart the peaceful transfer of presidential power. And now, Trump adds to an already distinguished criminal resume by allegedly attempting to influence a witness, in apparent violation of both state law and the conditions of his pretrial release.
“If our system of justice is to retain any legitimacy, Trump’s latest transgression simply cannot go unaddressed,” Kirschner argues, adding, “witness tampering strikes at the very heart of our criminal justice system.”
“If our system of justice is to retain any legitimacy, Trump’s latest transgression simply cannot go unaddressed,” he adds.
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