Is there a bright line for witness, prosecutor &amp; judge intimidation? ABC News reports: Trump on Friday afternoon had posted a message to his social media platform, Truth Social, saying, &quot;IF YOU GO AFTER ME, I'M COMING AFTER YOU!&quot; I am curious as to how the legal community will process the tweet. I'd like to understand if there is a &quot;bright line&quot; so as to determine if it has been crossed.
The only bright line regards the First Amendment. 18 USC 1512 articulates a line that is not to be crossed, but it is not clear where the line is as regards speech (subsection (a)(1) sets forth a bright line, viz &quot;kills or attempts to kill&quot;, irrelevant to the present question). Otherwise, the remaining categories fall into three subtypes: (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.. (c) Whoever corruptly— (d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from— These laws address communications addressed to witnesses, w.r.t. testimony. Case law e.g. US v. DiSalvo, US v. Murray all indicates that the forbidden threat must be addressed to an individual who might be a witness, whereas the above statement is not addressed, it is merely uttered (there is no clearly-intended recipient of the utterance). Similarly, 18 USC 1503 forbids &quot;corruptly, or by threats or force, or by any threatening letter or communication, endeavor[ing] to influence, intimidate, or impede&quot; a judicial officer, but this requires there to be a threat made to a specific judicial officer.
It is unlikely that the US, or any government, would condone any kind of crime. The reason for this is that the law must be seen to be impartial and applied fairly to all those subject to it. What happens if tomorrow, the government decides they don't like you? It is possible that this type of activity, or activity amounting to it, would be sanctioned in specific, authorised cases. But the government throwing a lynch mob at anyone is a bad idea for order and a peaceful society.
There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity.
I haven't reviewed the filings, but I can tell you that it's perfectly routine for lawyers to describe the other side's position as &quot;plainly without merit,&quot; with no regard for the actual merits. The lawyer's job is to make his client look good, in court and in public; the existence of this question shows that he's doing a good job at least on the latter half of that equation. But in truth, it's such a generic thing to say that no lawyer who hears it will actually think it means anything. In all likelihood, the filing is like most others, in that it makes a good case on some points and a bad case on others, and the opposing lawyer's job is to argue that all of them are bad. In the rarer case that a filing is actually &quot;plainly without merit,&quot; courts can and sometimes do impose penalties under Rule 11, which allows for sanctions against parties and attorneys who make factual assertions that are not supported by reality or arguments that are not supported by the law.
The defense has an opportunity to question the witness the prosecution had called to provide foundation for the evidence, and in this case the defense's perspective is that the prosecution was trying to introduce evidence that they had improperly digitally manipulated. Part of their questioning was trying to figure out how the witness had manipulated the image prior to offering it as evidence. It's the prosecution's burden to prove that the evidence they are offering is accurate, the defense's purpose in asking the witness questions he could not answer is to try to prove to the judge that the prosecution has not laid proper foundation for the evidence because it has been manipulated from its original form in a way the prosecution cannot explain or justify as remaining fair and accurate to the events captured by the original footage. This case in particular had a lot of video evidence, and most of these issues were handled in motions in limine before the trial started. However, the drone evidence in question was dropped at the prosecutor's office after the trial started, so the prosecution did not really have time to hire and voir dire an expert witness on Amped 5 (keeping in mind that the defense similarly had little time to review and account for the new evidence in the middle of trial). Since the defense in this case were cross-examining the witness, they have some leeway to present an argument with their questioning like they chose to do with the red/blue pixel drawings. As I recall the judge allowed the evidence as-is, so it does not appear that the defense's arguments were persuasive to the judge.
It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question.
There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake.
This is a question of civil procedure more so than law. The customs and practices of civil procedure are established by legal precedent, not laws made by legislatures. In general, a witness can answer a question however they want as long as it is responsive to the question. Litigators will attempt to bully a witness into certain types of answers, but this is not "illegal" nor is it "illegal" for witnesses to craft their answers as they like. As for yes-no bullying there are two general cases: (1) The question is factual. If the questioner asks a purely factual question, like "Did you go to the factory on that Tuesday?" then a yes-no answer can be compelled. If the witness tries to explain why he went to the factory, or something, then he can be cut off, because he is being unresponsive. (2) The question is hypothetical. If the question is hypothetical or suppositional, then the witness can reject the question. For example, if the question, "You told your boss that you hated your wife, isn't that right?" In this case the witness can answer, "I reject the question, the prosecutor is putting words in my mouth." or can say "I resent the implication." or "That does not accurately reflect what happened." or whatever. Any time a question "paints a picture" or establishes something hypothetical and simply asks the witness to agree with the fantasy scenario, the witness can refuse to answer, or can answer with a counter scenario which they consider to be more accurate. I would add that in case (2) where a questioner tries to paint a false scenario, it is a risky move, because it opens the door for the witness to say whatever they want. For example, imagine this exchange in the courtroom: Prosecutor: "You told your boss that you hate your wife, isn't that right?" Witness: "What actually happened is..." Prosecutor: "That is a yes or no question, answer yes or no." Witness (to judge): "Your honor, the question mischaracterizes the conversation I had with my boss, I want to explain what actually was said." Judge: "The witness may proceed with his answer." Prosecutor: "I withdraw the question." Defender: "The prosecution has opened the door, let the witness answer." Judge: "The witness will answer the question." So, now the witness has permission to answer however he likes, and the prosecutor has blundered by making a vague question that created the situation where that was possible. The main thing a witness has to do is not try to say irrelevant things or try to add information beyond what was asked for, in that case the questioner can cut them off.