Should Trump be held in pretrial detention?

• Glenn Kirschner, veteran Washington DC prosecutor for 30 years, now MSNBC legal analyst, discusses the gag orders imposed on Donald Trump in various criminal trials, highlighting his continuous attacks on judges and their families.
• Kirschner argues for pre-trial detention of Trump, citing evidence of his danger to the community and the justice system.
• He emphasizes the need for prosecutors to take decisive action against influential defendants like Trump, despite political sensitivities.
• Kirschner explains the factors hindering prosecutors from seeking pre-trial detention, including reluctance to prosecute wealthy, powerful individuals and fear of losing cases.
• The discussion delves into the potential scenarios where pre-trial detention for Trump might be considered, such as if a witness were harmed due to his rhetoric.
• Both Kirschner and the host express concern that it may take a tragic event to prompt action against Trump, lamenting the lack of decisive measures to safeguard democracy.
• They stress the importance of adhering to the rule of law and urge viewers to stay informed about Trump's legal proceedings.

Kirschner also gets into why the justice system is afraid to do it, and he feels it's politics, and that's wrong.

I concur. If you have some time, I invite everyone to watch/listen to the video (link below).

The question/topic under discussion here is "Should Trump be held in pretrial detention?". Whether your agree or disagree, I invite you to state your path of reasoning, state your case, rather than a simple yes or no. But, I urge you to watch the video or read the transcript below (done by software, might contained some truncated lines).

Let's discuss.



I realize some of you are in rural areas without sufficient bandwidth to watch videos, so below is a transcript. There are two participants, Brian Tyler Cohen, "The Legal Breakdown" show's host, and Glenn Kirshner, legal analyst:

BTC: You're watching the Legal Breakdown. So, Glenn, Donald Trump was issued a gag order which didn't include the judge or his family in the Manhattan criminal trial. Immediately, Trump started attacking Judge Maran and his family members. You've argued for pre-trial detention; you've done it on air. Why should the court seek that remedy?"

KIRSCHNER: All of these gag orders feel a lot like just moving the deck chairs around on the Titanic as our democracy continues to take on water. On Friday, I was on Deadline White House with Nicole Wallace. I was on a panel with Judge Ludwig, and we were talking about what needs to be done by the criminal justice system, by the institutions of government, by the prosecutors to deal with the unending threat of Donald Trump's reckless, dangerous, violence-inducing rhetoric.

Because, now, Donald Trump has the trifecta of gag orders in place: one issued by Judge Chutkan in the DC federal prosecution, one by Judge Engoron in Donald Trump's New York fraud trial, and now one by Judge Marchan in Donald Trump's criminal case for trying to interfere in the 2016 election. Even though Donald Trump is laboring under the hat trick of 'shut up,' he is still running his mouth and endangering witnesses, jurors, prosecutors, judges, and all of their family members.

Something else needs to be done. The good news is the law provides a remedy for this. So every single time I indicted, or more precisely, had a grand jury indict a defendant on felony charges, one of the first things I had to decide was, am I going to file a motion for pre-trial detention? ... The factors that went into that decision were as follows: Is there evidence that the defendant is either a flight risk, such that if released, they will not return for their next trial date, or is there evidence that the defendant poses a risk to the community or to a single person in the community?

If prosecutors have evidence, and the evidentiary standard and the bar they have to reach is what's called clear and convincing evidence, that the defendant poses a danger, then that's what we're going to stick with. If they have clear and convincing evidence that Donald Trump poses a danger, the law provides he is to be detained pending trial to neutralize the threat and protect the victims and the community. Everybody knows this who operates in the criminal justice system.

We have four prosecution teams prosecuting Donald Trump is being prosecuted up and down the Eastern Seaboard in two states in two separate federal jurisdictions. All four judges and all of the prosecutors involved know that pre-trial detention should be had here. Why? Because Donald Trump is a danger to everybody, right? He's a danger to American democracy. He's proved it over and over again.

But the problem is no judge, no prosecutor, no institution of government has been willing to take that necessary step, the step that is absolutely within the bounds of the law, to order him into pre-trial detention. And as a result, they have decided that everyone else's safety will be put in jeopardy rather than incarcerating Donald Trump pending trial as the remedy for his dangerousness.

And I can tell you, Brian, as a former career prosecutor, this makes my head explode because every single time I had to make that weighty decision in a case, and I took it deadly seriously, and I made it countless times in 30 years. Do I file the motion asking the judge to order this defendant into pre-trial detention? I had an obligation, I had a sworn duty. If I believed the defendant was a danger to the community, I had to move for pre-trial detention. I had to file the motion because if I didn't, then I was falling down on my job as a prosecutor.

All of the prosecutors and all of the judges are falling down on the job. I have a little bit of a suspicion as to why that is. One of the reasons I believe is, once you have somebody who's being prosecuted in so many cases, it feels like each prosecution team and each judge might be looking to the other, thinking maybe they're going to do it. Maybe I won't have to be the first prosecutor or judge to do it. And as a result, nobody's doing it. That's something that I think really needs to change, or else we're going to see more violence visiting witnesses, jurors, prosecutors, judges, and their families.

BTC: Glenn, aside from Trump, do the courts or prosecutors ever bend over backwards for anyone else in similar circumstances?

KIRSCHNER: Unfortunately, I just wrote a piece for MSNBC that went up a couple of days ago, and I tried to explain why it is the Department of Justice, in particular, is struggling to hold Donald Trump accountable the way they would hold anybody else accountable that wasn't Donald Trump. One of the factors is there is a hesitation, a reluctance even, to take on defendants who are wealthy, influential, powerful, well-connected. There is a hesitation. If you are poor, disaffected, marginalized, the prosecution doesn't ordinarily have a tough time going hard after you. But not so when it comes to people who are wealthy, powerful, influential, well-connected.

Add on top of that, if the wealthy, powerful, well-connected person is political, there is this hypersensitivity that prosecutors experience when it comes to going after political figures because they fear that they're going to be accused of making decisions based on politics or partisanship rather than just the facts and the law. And that's a hypersensitivity that I wish prosecutors would get over because they really need to apply the facts and the law even to political defendants the way they would apply them to people who were not in the political sphere.

The next thing is because there's no precedent, because a former president has never been prosecuted, it's outside a prosecutor's comfort zone. Let me tell you, when I'm handling cases, there was a certain comfort level in knowing that I had precedent. What does that mean? I had a court-approved blueprint for going after somebody in the way I wanted to go after them. But there's no precedent here, and that, I think, is intimidating to prosecutors. They want that security blanket. The reality is they're never going to have it until they prosecute the first criminal former president. They need to make the precedent here.

Another thing is prosecutors, and there are five factors here, so bear with me. Prosecutors, federal prosecutors, basically get to pick and choose the cases they pursue. What do I mean by that? When somebody commits a federal crime, they almost always commit a state crime as well. Federal prosecutors have the luxury of looking at all of the cases where there might be federal jurisdiction and they can decide to take the case or decline to take the case. We have a term for it. It's called 'kicking it to the state.' Let's kick it to the states and let the state prosecutor worry about this because the defendant violated state law as well. That can do a real disservice to the community and to the victims because the federal government typically has more resources, more time, more prosecutors. I wish the feds would take more cases rather than kick more cases to the states. Frankly, this is a battle I fought as a federal prosecutor my entire career.

The fifth thing is, feds hate to lose. They just hate to lose. That's why federal prosecutors have what I consider to be an obscenely high conviction rate, in excess of 99% of the cases they take to trial, they win convictions on at least one indicted count. I think they should be taking more challenging, more difficult cases rather than just the sure winners. Let me hasten to add, there's no such thing as a sure winner. But federal prosecutors know a strong case when they see one. What I always said when I was supervising 30 federal homicide prosecutors as the chief of homicide at the DC US attorney's office, I said, 'There is no shame in taking a difficult, righteous case to trial and losing it. There is nothing but shame in declining to take a challenging, righteous case to trial for fear of losing it.
All of those factors sort of combine in this quixotic mix that often leads to federal prosecutors talking themselves out of bringing a difficult case, challenging case, a novel case, a political case. And I think that is part of what we are seeing go on here with respect to Donald Trump and the inability of the institutions of government to do what we all know needs to be done, which is put him in pre-trial detention.

BTC: Is there any scenario that you could imagine where a judge or prosecutors would seek pre-trial detention for Trump, realistically?

KIRSCHNER: Okay, let's assume, and this is horrific, but let's assume Donald Trump, on day one, posts something about the name of a witness that the general public didn't know about before. This witness is lying about me, this witness is part of the witch hunt, part of Joe Biden's efforts to hold me accountable for something I didn't do. And let's assume in my hypothetical, the next day, the witness is killed. Would that be enough to show, just inarguably, frankly, beyond a reasonable doubt, that Donald Trump is an extreme danger to the witnesses against him and indeed to the very prospect of the criminal justice system operating effectively? It certainly would seem like there would be no other alternative. But do we really have to wait for that to come to pass?

Donald Trump launched an attack on the Capitol on January 6th because he wanted to unlawfully retain the power of the presidency. He told his supporters, 'Fight like hell or you won't have a country anymore. Go to the Capitol and stop the certification.' He used the words 'stop the steal' because he had to keep up the con and the lie. And what did we just hear him say not a week ago? 'If I lose this election, it will be a bloodbath.' He tried to walk that back and say, 'Well, I was talking about the auto industry, I was talking about an economic bloodbath.' But please, I urge people to go back and look at the clip. He was talking about the auto industry, but he said, 'No, no, no, besides that, set that aside. If I lose the election, it will be a bloodbath.' We know what that was. That was a direction. It wasn't just him ruminating, it wasn't an observation. He was ordering his foot soldiers again. I am expecting a bloodbath from you if I lose. Don't let me down. Why we continue to let Donald Trump endanger all the American people, all the witnesses, the judges, the prosecutors, the jurors, and indeed the viability of our very democracy without doing what the law allows, which is ordering him into pre-trial detention, is beyond me.

BTC: My worry here is exactly what you said, is that it will take something like someone dying to actually warrant the step of locking him up pending trial. But save for that, other than that, it's likely not going to happen. And that's the sad part about this because we already know what the result of all of his rhetoric is because we've lived through it January 6th. And yet we're seeing the rhetoric now and kind of whistling past the graveyard, pretending that we don't know what's on the other side of this thing when we already do. And yet still, for some reason that I can't even wrap my head around, we have to wait until we get those dire results before anybody deigns to do anything about it.

KIRSCHNER: Yeah, it really feels like we're just slouching toward the end of our democracy, and no one person, one institution, is willing to step up and do what the law allows. The last thing I would ever advocate for, Brian, is going beyond the rule of law. The law permits, and indeed, the law requires that if the defendant on pre-trial release in a felony case poses a danger to the community or even one person in the community, he should be detained pending trial. So this is not a stretch designed to overreach and hold Donald Trump accountable in some way that other people aren't held accountable. But you know, it just feels like we're going to keep rearranging the deck chairs until we take on so much water as a democracy that we sink.

BTC: For anybody watching right now, Glenn and I, of course, will continue to follow along all of Donald Trump's prosecutions and what he says in the lead-up to them for as long as they go on. [...]

 

If you are going to do that sort of thing you had better be certain that Trump doesn't end up POTUS again.

 

I understand your point, but I don't subscribe to the idea that DOJ decisions should be based on political considerations.

 

Preposterous claptrap garbage

 

All of it? There is not one proposition in the OP etc you agree with?

 

I stopped reading at MSNBC legal analyst, which means I didn't make it through the first sentence. Too bad MSNBC fired the only person they had to could offer a differing opinion.

 

That is not an valid counter argument.

If you have no intention of contributing to, or otherwise moving the discussion/debate forward, please ignore the thread.

 

Assuming the argument for detention is based on his potential to obstruct the system covertly, then the argument is absurd as he would be doing that through his lawyers, with whom he would have access regardless of detention. Unless the detention includes keeping him separate from his lawyers or denying him attorney-client privilege, then detention isn't going to prevent anything. And I think setting more 'for Trump only' precedents is going to be more damaging to public perception than anything Trump could ever say or do himself.

If the argument is based on keeping him silent, well I can't imagine a better way to solidify and proliferate the perception that the case is being used as a means of election interference (that's certainly how I would view it).

If the argument is based on preventing another Jan 6, well then the justice system sure as hell aint gonna do anything to prevent that, its been the establishment's primary source of ammo for three years and they've spammed it to death now. Nothing would hurt Trump's candidacy more than another Jan 6, and such a thing is going to be awfully hard to convince everyone it was 'Trump's fault' if he's in custody when it happens.

 

For a misdemeanor charge?

That wouldn't look like harassment and election interference at all...lol

 

The purpose of detention would remove his danger to society while he is awaiting trial. It's the same for all persons under indictment. Another reason is flight, but that's not really a consideration here.

His lashing out at Judges, their underlings, etc., results in Trump's base sending them death threats, etc. That Trump does this with nary a word stopping his base from doing it tells us he is doing it purposely with that outcome, to intimidate the justice system to his advantage.

Most persons under indictment do not have 65 million loyal followers, so Trump poses a unique danger than most would not.

Politics should have nothing to do with it, as Kirschner explained. Did you not watch the video or read the transcript?

 

That is not a valid counter argument.

If you have no intention of moving the debate/discussion forward, please ignore the thread.

 

That's WHY they want to do that sort of thing. So he DOESN'T become POTUS again.

 

Unless the DOJ is going after Trump, then it's ok...lol

 

There are 34 felony counts in THE PEOPLE OF THE STATE OF NEW YORK -against- DONALD J. TRUMP,

https://s3.documentcloud.org/documents/23741568/donald-j-trump-indictment.pdf

Politics are not considered.

 

The 'politics' to which you're referring are the perception of consent of the governed. 65 million people is an awful lot to have believing the govt has lost interest in representing them. Thats not something our nation can survive. 'Should' doesn't really apply here. Politics already has a lot to do with it, and there's no changing that.

'Death threats' are a kenard. Literally anyone can be (and likely is) sending those. Its not unknown for people to send themselves or their allies death threats to manufacture sympathy, as its the easiest sort of 'false flag' to get away with. If Trump told people to stop, A- they wouldn't, and B- the media would say he's claiming responsibility for it. Unless and until there is evidence that Trump directed or requested people to send death threats, then individuals are doing that independent of Trump and there's no reason to hold him responsible for it. People sent poltically motivated death threats WAY before Trump was a thing. Why is he the only one that we're supposed to believe is the cause of that phenomena?

 

In your dreams. By the way, Trump leads in every single swing state.

 

Considering that Trump isn't a violent offender and isn't charged with a violent crime, the proposition in the OP doesn't apply.

And before you scream "January 6th", he isn't charged with a violent crime at the Federal level, either.

They're only felonies if Bragg can prove a Federal crime was committed. Until then, they're just misdemeanors.

Politics are the only thing being considered...lol.

 

If you don't like my opinion then feel free to ignore it.

President Trump will never sit his ass on a toilet seat in a correctional facility not even one time

 

I have never claimed to be wise, and if I were wise, I would ignore it. But, I do like to indicate the terrible as it occurs.

I'm just indicating the inescapable fact that your opinion, as was written, contributes zero to the discussion.

It's reasonable that I ask you to abstain, unless you can, indeed, contribute, in a constructive way that moves the debate forward,

 

To be fair, the proposition put forth by your source adds nothing to the larger conversation.

Yeah, we know you hate Trump. We know you want him railroaded, his rights be damned. So, anything you post that supports your position is irrelevant because we already know where you stand.

 

Should Trump be held in pretrial detention?

No.

 

Interesting when the chickens come home to roost @Patricio Da Silva....

 

Why? why are you ignoring the obvious?

Why? Because he has a megaphone the size of Trump Tower, which goes right to the 'hang-on-every-word' 65 million eyes and ears of his followers, that's why.

Did you mean 'canard'. Anyway, hardly, it's well established that it's Trump supporters sending these threats. Your 'false flag' is a conspiracy theory. You are doing a trick which I call 'lawyering the argument', which, in your case, is somewhat similar to the old adage, "If the law is on your side, pound the law. If the facts are on your side, pound the facts. If neither is on your side, pound the table", and here, you haven't gone as far as pounding the table, but you are doing a trick called 'fogging the landscape' with a CT, and the irrelevant fact that 'people sent death threats way before Trump was a thing' (yeah, people committed heinous murder long before Jeffrey Dahmer was a thing, and your point is?).

 

Why not? Because it wouldn't be right, or because you know it would make him more popular?

 

That isn't grounds to put someone in jail...lol.

But, you don't give a rat's ass about Trump's rights. Do you?

How come no one has been arrested, then?

If it's "well established" that it's Trump supporters, then it shouldn't be hard to identify them and arrest them, but that isn't happening.