Donald Trump's Remarks About Mike Pence Could be His Undoing

Donald Trump's ongoing attacks against former Vice President Mike Pence may be used against him during the January 6 trial, even if they don't amount to potential witness intimidation, according to legal experts.

Trump has pleaded not guilty to four charges as part of Special Counsel Jack Smith's investigation into the alleged attempts to overturn the 2020 election. Among the allegations Trump faces is that he repeatedly pressured Pence not to certify the electoral votes during his purely ceremonial role as presiding officer of the Senate on January 6, 2021.

In the wake of his latest federal indictment, Trump has increased his attacks against Pence and dismissed his former close ally's versions of events that led up to the January 6 attack. Trump has repeatedly criticized the special counsel's investigation and argued that it is politically motivated. He denies all wrongdoing.

Donald Trump (left) listens as Mike Pence speaks during the daily briefing on the novel coronavirus, COVID-19, at the White House on March 22, 2020, in Washington, DC. The former president's social-media attacks on Pence may be used against Trump during the January 6 trial, legal experts have said. ERIC BARADAT/AFP/Getty Images

"WOW, it's finally happened! Liddle' Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side," Trump said in a Truth Social post.

"I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was 'too honest,'" Trump added. This was a reference to a remark the former president is alleged to have told Pence after the then-vice president said he didn't have the constitutional power to stop the votes from being certified during a January 1, 2021 meeting between the pair.

"He's delusional, and now he wants to show he's a tough guy," Trump added.

There has been speculation as to whether Trump's social-media attacks on Pence could amount to witness intimidation, seeing as the former vice president is a potential key witness in the federal trial. The debate has increased as the judge overseeing the trial, Tanya Chutkan, is weighing up whether to impose a protective order. This would prevent Trump from discussing aspects about the case, or discussing potential witnesses.

Joshua Ritter, a criminal defense attorney in Los Angeles, told Newsweek that even if Trump's comments about Pence are not considered a violation of a protective order, they could be used against him as evidence by the prosecution to suggest a pattern of behavior.

"The same rules of a defendant's statements being used against him apply to Trump as equally as with any other defendant. Anything he says can be used against him at trial," Ritter said.

"If prosecutors want to demonstrate Trump has a persistent pattern of using his most fervent base of supporters as an extension of himself to enact his political will, and they feel that is the theory behind their prosecution of Trump in this case, they can absolutely use what Trump says about Pence.

"They may not even need to say that what he is saying about Pence is illegal," Ritter added. "If it plays a role in his overall pattern of behavior, it could be corroborating evidence of what they're trying to prove in the indictment. I could imagine a situation where, at closing arguments, a prosecutor would say that Trump demonized Pence on January 6 and that Trump's demonization of Pence on social media has continued ever since."

With regards as to whether Trump's attacks may be classed as witnesses intimidation, Ritter said the only circumstances where Trump "would cross the line" would be if Trump shared privileged information about the former vice president. Ritter added it could also happen if Trump is "inciting his most fringe followers to take it upon themselves to intimidate Pence and prevent his continued cooperation with the prosecution."

Barbara McQuade, a former Michigan U.S. attorney and legal analyst, told Newsweek that Trump's comments about Pence could be seen as an effort to intimidate the former vice president. However, proof of a corrupt intent can be difficult to prove, and instead the social-media posts could be used as evidence elsewhere in the case.

"Anything Trump says or writes can be used against him, but it must be relevant to proving the offenses in the indictment," McQuade said.

Trump and Pence's relationship fell apart in the wake of the January 6 attack, during which the former president's supporters could be heard chanting "hang Mike Pence" in the corridors of the Capitol while supporting Trump's false election-fraud claims.

As the violence at the Capitol was unfolding, Trump posted a message on Twitter, now X, stating that Pence "didn't have the courage to do what should have been done" by preventing the 2020 election results from being certified.

Pence, who is running alongside Trump in the 2024 GOP presidential primary, has become more outspoken in his criticism of Trump and the former president's attempts to stay in power after he lost the 2020 election to Joe Biden.

After Trump was indicted in the January 6 case, Pence posted on X that the former president had "demanded that I choose between him and the Constitution" by pressuring him not to certify the 2020 election results.

Los Angeles-based civil rights attorney V. James DeSimone told Newsweek that "no one should be surprised" by Trump's public attacks on Pence given the hostility between the pair. However, DeSimone added that Trump is "coming close to violating the law" with his pre-trial attacks.

"The Truth Social quotes specifically about Pence, in combination with Trump's threat, 'if you come after me, I will come after you' could very easily result in Judge Chutkan issuing a protective order restricting what Trump can say about evidence in the case and about witnesses," DeSimone said.

"In order to give the order teeth, Judge Chutkan could make it clear that any violation would be considered a criminal contempt of court, which often involves jail time," DeSimone added.

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. Trump's team also called for narrower limits on any such order.