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Former President Donald Trump will not participate in the first Republican primary debate this week, likely to the relief of his legal team.
Trump's 2024 candidacy as the GOP frontrunner is on a collision course with four criminal trials and he's under a protective order that limits his ability to speak about evidence and witnesses related to the federal election interference case. If Trump went to the debate, it's possible his comments could have been used against him in court or even break the law.
Unlike a gag order that requires a defendant to refrain from making public statements, a protective order limits the dissemination of documents from discovery. However, Trump is generally prohibited from attempting to influence or intimidate witnesses as a condition of his release, former federal Neama Rahmani told Newsweek.
"So if Trump were to debate and say something that were deemed a witness threat, that would be unlawful," Rahmani said. "It would also be potential grounds to revoke his release and remand him to custody, though it's highly unlikely any judge would actually do that."
The big question hovering over the 2024 Republican primaries has been whether or not Trump will appear at Wednesday's event in Milwaukee to debate his challengers, especially given his various legal setbacks.
Trump put an end to the speculations around his attendance on Sunday, writing on Truth Social that since "the public knows" who he is and has already seen his capabilities in the White House, he will "NOT BE DOING THE DEBATES!"
The decision not to appear on the debate stage is the right one, legal experts say.
"Whoever the lawyer is who had the intervention with Trump...deserves the 'Lawyer of the Year' award," former federal prosecutor Glenn Kirschner told Newsweek.
Along with making potentially incriminating statements, the comments Trump makes could deprive his attorneys of a potential defense, Kirschner told Newsweek.
Kirschner, a known Trump critic, explained that because of the rules of evidence in a court of law prevent Trump's legal team from presenting a defense related to anything he's made a public statement about. So, the nature of a presidential primary debate, where off-the-cuff comments fly, would put Trump's lawyer on edge.
"There is no circumstance more volatile than the presidential debate where everything is going to be thrown at [Trump] by Republican candidates brave enough, or patriotic or honest enough, to confront Donald Trump," Kirschner said. "The opportunity for him to make statements that will hurt him in his upcoming criminal trials is enormous."
Trump has been indicted four times in a matter of five months. He is facing state charges in New York for falsifying business records in a hush-money case as well as in Georgia for racketeering charges in connection to his efforts to overturn his 2020 election loss in the state. He is also facing criminal charges in two federal cases: the Mar-a-Lago confidential records case and the January 6 case pertaining to his alleged interference in the last presidential election. He has pleaded not guilty to all charges.
The judge overseeing the federal January 6 case granted Special Counsel Jack Smith's request for a protective order earlier this month, cautioning Trump from making "inflammatory statements" about the case and warning him that his free speech rights are "not absolute."
In an August 11 ruling, Judge Tanya Chutkan, who is overseeing the January 6 case, wrote, "The more a party makes inflammatory statements about this case which could taint the jury pool or intimidate potential witnesses, the greater the urgency will be that we proceed to trial to ensure a jury pool from which we can select an impartial jury."
Chutkan told Trump's lawyer that her decision would not be impacted by any "existence of a political campaign" and reminded the attorney that Trump is still a criminal defendant and thus, would "have restrictions like every single other defendant."
Trump's comments on a debate stage would not only risk breaching those limitations set by the judge but could also give prosecutors more evidence to wield against him in court. Even if the conversation on Wednesday doesn't go near Trump's efforts to overturn the results of the 2020 election, his comments could be used against him in a criminal case.
"Certainly there are plenty of issues to discuss during a presidential debate outside of criminal charges, but to the extent Trump were to make any statements, that were incriminating or inconsistent with his position at trial, they could be harmful to his case," former U.S. attorney Barbara McQuade told Newsweek.
When it comes to weighing the power of Trump's out-of-court comments on his case, Rahmani said there's no real upside and they can "only hurt him."
About the writer
Katherine Fung is a Newsweek senior reporter based in New York City. She has covered U.S. politics and culture extensively. ... Read more