Federal Judge Found ‘Reason to Believe’ Trump Would ‘Flee from Prosecution’

Overshadowed by the news that Special Counsel Jack Smith secretly obtained access to Donald Trump’s Twitter account, a three-judge panel of the D.C. Circuit relegated a blockbuster revelation to a footnote. 

“The district court also found reason to believe that the former President would ‘flee from prosecution,’” it began.

The appellate court’s ruling does not reveal why U.S. District Court Beryl Howell, who oversaw the special counsel Jan. 6 investigation before handing over her title as the jurisdiction’s chief judge in March, made such an explosive finding to justify imposing a non-disclosure order preventing Twitter from telling Trump that prosecutors demanded access to his account. 

According to the ruling, prosecutors, for reasons currently unknown, ultimately shelved that argument, and Howell ultimately relied on other factors to support her ruling. 

“The government later acknowledged, however, that it had ‘errantly included flight from prosecution as a predicate’ in its application,” the carefully worded footnote continued. “The district court did not rely on risk of flight in its ultimate analysis.” 

There’s no indication that Howell ever withdrew her finding.

The D.C. Court said that Howell simply leaned on other reasons for upholding a non-disclosure order for Twitter, like giving Trump "an opportunity to destroy evidence, change patterns of behavior” or “notify confederates." 

A Trump spokesman did not respond to a request for comment about the flight-risk footnote. In a Truth Social post, the former president blasted the broader revelation that Smith had used a search warrant to get records and data about his dormant @realdonaldTrump Twitter account, writing, "These are DARK DAYS IN AMERICA!"

‘Much Too American’

Trump famously has a private plane with his name splashed on the side that he uses to travel the country and currently for his 2024 campaign.

Beyond the U.S., the company he founded, the Trump Organization, boasts of foreign offerings for golf, hotels, residential and estate properties that carry the Trump name stretching from Scotland and Ireland to India, Indonesia, South Korea, Turkey, Oman, Uruguay, the Philippines and St. Martin. 

Still, the Department of Justice ultimately determined that Trump was not a flight risk, and prosecutors have not asked him in any of his criminal cases to surrender his passport, restrict his movements or comply with electronic monitoring. 

For many legal experts, that isn’t surprising. 

“I don't think most prosecutors would regard Donald Trump as a flight risk given his ties to the United States, the sheer amount of financial interests he has in the United States, family interests he has in the United States, and really, so much of his identity is tied with the United States,” Renato Mariotti, who prosecuted white collar crimes in the Northern District of Illinois, told The Messenger.

St. John’s University law professor John Q. Barrett, interviewed back in May on the topic of the former president as a potential flight risk, laughed at the notion of Trump in the wind.

“He's much too American a person to think of being in exile or being a fugitive,” Barrett told The Messenger, who whimsically ruled out the former president in a “dacha in Russia” or a “palace in Saudi Arabia.” 

“Florida is as far as he’s going to flee,” quipped Barrett, a former associate counsel during the independent counsel investigation of Reagan-era secret U.S. arms sales to Iran.

Former Watergate prosecutor Phil Lacovara likewise tossed out a few far-flung hypotheticals.

“I dont think his temperament is one that’d have him flee to Saudi Arabia or Venezuela and be willing to spend the rest of his days,” Lacovara said in an interview earlier this spring following Trump’s indictment in New York but still a month before the first federal charges came down. “In Saudi Arabia he’d be treated like a visiting emirate and could play golf and have all the women he wants but I just don't see Donald Trump essentially ending his life as a fugitive felon.”

‘Extraordinary Finding’

So how did a federal judge inside the nation’s capital rule differently?

CNN legal analyst Jennifer Rodgers, a former federal prosecutor who spent more than 13 years in the Southern District of New York, emphasized that the bar for determining Trump to be a flight risk would have been lower in the context of a search warrant than for pre-trial release. 

She told The Messenger that prosecutors could have relied on Trump’s “general characteristics” to meet the former standard.

“So if you had a defendant who is a multimillionaire or a billionaire, who has extensive contacts overseas, and who is potentially facing a serious criminal matter, you would probably throw in risk of flight from prosecution as one of your reasons — even if you didn't have a specific piece of evidence” showing an attempt to flee, Rodgers said. 

Rodgers ultimately viewed the footnote as a federal prosecutor’s instinct for caution.

“Government lawyers can't help themselves,” she said. “It's always belt-and-suspenders. You know, you wanna make all the arguments that you have.”

Former federal prosecutor Mitchell Epner noted that Trump checks even other boxes, like assets overseas and the ability to travel on a private plane, and the public has not seen the evidence prosecutors initially used to make their argument.

“Having said that, it’s an extraordinary finding,” noted Epner, a partner at Rottenberg Lipman Rich PC. “I cannot imagine that a judge lightly made that finding that the former president of the United States had a likelihood to flee prosecution, if he learned he was being investigated.”