A district court judge’s observation, buried in an appellate footnote, finding “reason to believe that the former President” — meaning Donald Trump — “would ‘flee from prosecution’” foreshadows an unlikely but not inconceivable denouement of Mr. Trump’s trials. 

The specter of Mr. Trump boarding his private jet and taking to the skies outside America comes as Special Counsel Jack Smith asks for a January 2 start date for the trial of the former president over efforts to overturn the 2020 election. He hopes to “vindicate the public’s strong interest in a speedy trial.” The compressed timeline brings into focus how Mr. Trump might respond to the specter of a conviction.  

Judge Beryl Howell’s suspicion that Mr. Trump could go on the lam — the opinion itself is under seal, but is quoted in the appellate decision affirming it —  is embedded, though, in a ruling affirming a nondisclosure order for a subpoena issued against Twitter by the special counsel, Mr. Smith, who sought and access to Mr. Trump’s archives on the platform. Twitter’s owner, Elon Musk, who changed its name to X, fought both the subpoena and the nondisclosure order and lost.

After Mr. Smith was granted access to the former president’s files along with a non-disclosure agreement, Twitter failed to meet the court-ordered deadline to provide the materials, incurring a $350,000 fine. Twitter appealed, arguing that the enforcement of the subpoena as well as the penalty should have been stayed. A panel of riders of the District of Columbia Circuit on Wednesday rebuffed that claim.

In finding for Mr. Smith, the panel turned to the Stored Communications Act, which governs the government’s ability to gain access to data like Mr. Trump’s. The law provides for nondisclosure agreements, which order service providers “not to notify any other person” of a warrant or the order’s existence “for such period as the court deems appropriate.”

The law tells courts to grant such orders if there is “reason to believe” that disclosure would prompt one of five enumerated harms, among them “flight from prosecution.” Judge Howell’s finding that Mr. Trump poses this “harm” is intriguing because, as the riders of the appeals circuit put it, the “district court did not rely on risk of flight in its ultimate analysis.” It instead turned to the other four harms, which comprise destruction of evidence, witness tampering, and the like. 

It appears, though, as if Judge Howell did not come to her conclusion that Mr. Trump could flee sua sponte. The appellate opinion notes, “The government later acknowledged, however, that it had ‘errantly included flight from prosecution as a predicate’ in its application.” The jurist, in other words, found Mr. Trump to be a flight risk in response to a claim that Mr. Smith did not intend to proffer. 

This blurry legal trail could reflect the novel considerations at play in evaluating the likelihood that Mr. Trump might light out for parts unknown rather than stay to meet whatever sentence a judge and jury hand down. He is in possession of his own jet — he has used it to criss-cross the country for his arraignments — making escape conceivable. 

At the same time, though, Mr. Trump’s face is one of the most famous punims in the world, and he is the frontrunner for his party’s presidential nomination. 

Mr. Smith has thus far not — intentionally, at least — made the argument in court that Mr. Trump should be forced to surrender his passport or even be detained pending trial. While three of his passports were seized during the search of Mar-a-Lago — two expired and one diplomatic — they were subsequently returned. 

At Mr. Trump’s arraignment, alongside his valet, Waltine Nauta, for alleged crimes relating to classified documents, one of Mr. Smith’s deputies, David Harbach, told the presiding magistrate judge that “the government does not view either defendant as a flight risk.” 

As more charges loom for Mr. Trump in Georgia — CNN reports that 11 indictments are in the works with respect to the 2020 election — the district attorney there, Fani Willis, will have to make her own determination whether Mr. Trump is more liable to opt to fight, or for flight.