Could Donald Trump's Social Media Posts Land Him in Jail?

There is continuing speculation as to whether Donald Trump's social media activity could result in prosecution—and even jail—as the judge in the January 6 trial weighs up whether to impose a protective order.

Trump has faced criticism for his recent Truth Social posts, in which he insulted former vice president Mike Pence—a potential key witness in the federal trial into the alleged attempts to overturn the 2020 election—demanded that U.S. District Judge Tanya Chutkan recuse herself from the case, and continued his ongoing attacks against Special Counsel Jack Smith.

The former president also posted "IF YOU GO AFTER ME, I'M COMING AFTER YOU!" on social media on August 4, prompting the Department of Justice to write to Chutkan and urging her to impose a protective order in the case over the apparent threat.

Protective orders are common, but Smith's team argues that one is "particularly important in this case" where the former president has pleaded not guilty to four charges as Trump has posted on social media about "witnesses, judges, attorneys" and others associated with the trial. Federal prosecutors also warned that the former president may disclose information that is important to the case in his social media comments.

Trump's lawyers have rejected the need for a protective order, and argued that Trump's comments about the trial, including his attacks on Pence and claiming Smith is engaging in "election interference" with his probe, are protected under the First Amendment.

If Judge Chutlkan does impose a protective order, Trump would be prohibited from discussing aspects of the trial, including witness transcripts or similar details, in order to prevent suggestions of witness intimidation.

Bradley P. Moss, a lawyer who specializes in national security, previously suggested Trump could be jailed over his social media activity should a protective order be issued.

"Keep talking. He's going to risk getting thrown in jail for violating the terms of release," Moss wrote on X, formally Twitter, while also sharing a Truth Social screengrab of the former president attacking Pence as "delusional" and "now wants to show he's a tough guy."

However, Barbara McQuade, a former Michigan U.S. attorney and legal analyst, said that it is unlikely that the frontrunner in the 2024 GOP presidential primary will end up in jail if found to have violated the order.

"A violation could result as either contempt of a court order by a fine or even jail or revocation of his order of release on bond for violating its conditions, but it would be very difficult for a judge to jail a candidate for president," McQuade told Newsweek.

Joshua Ritter, a criminal defense attorney in Los Angeles, said that imposing a proactive order would be a "very serious development" in the federal case, but any violation may not result in jail time.

"Usually, if the judge feels the defendant has violated a protective order, she will haul everyone into court and give a real tongue lashing against the defendant and warn him of the severity and the seriousness of it," Ritter told Newsweek.

"If the violation isn't something tremendously serious and is more along the lines of pushing the envelope, then it will likely end with that warning.

"But these orders have teeth," Ritter added. "If Trump posts documents online, the judge could impose swift and severe consequences. She could throw him in jail. But the chances of that are slim, especially without significant warnings from the judge. Normally, a defendant will not completely violate an order but he may do something that comes right up to the edge."

On Monday, Trump's legal team argued against the need for a protective order while claiming the government is seeking to restrict their client's First Amendment rights amid his latest White House bid while calling for narrower limits on any such order.

In response, Smith accused Trump and his lawyers of submitting an "unreasonable" order revision so the former president can "facilitate his plan to litigate this case in the media, to the detriment of litigating this case in the courtroom."

Judge Chutkan has now ordered federal prosecutors and Trump's legal team to meet on August 8 to agree on possible dates for a hearing to discuss the protective order.