This morning, Justice Juan Merchan, the judge presiding over Donald Trumpâs election interference case in Manhattan, found the defendant in contempt of court. The judge concluded Trump engaged in nine willful violations of prior court orders that sought to preserve the integrity of the criminal proceeding against the former president.
While some might have gotten their hopes up that Merchan might jail Trump for his behavior in violation of those orders, thus far heâs only been fined. But that doesnât mean Trump isnât in considerable legal jeopardy.
It might not take much to push Merchan over the edge, and for Trump to find himself in jail. And thatâs exactly what Merchan made clear in todayâs decision.
Prior orders in the case prohibited Trump from engaging in attacks on witnesses, jurors, or those involved in the proceeding, including members of the judgeâs family. Despite such prior âgag ordersâ as they are commonly called (and they are common), Trump used his considerable social media reach to do just that, attacking witnesses like Michael Cohen and Stormy Daniels, and singling out a prospective juror for criticism.
As a result, the court fined Trump $9,000â$1,000 for each violation.
That might seem like a slap on the wrist, but it is important to note two things: first, this was the maximum financial penalty the judge could impose under the law; second, the judge made quite clear that future violations of the order could result in jail time.
If past is prologue, it is not too difficult to imagine Trump will not be able to help himselfâand that his mouth and social media fingers could very well send him up the river.
Before this trial began, the former president railed against the prosecutor, the judge, and even the entire borough of Manhattan, where he argued he could not get a fair trial. On his social media site, Truth Social, he singled out potential witnesses like Cohen and Daniels, claiming he needed to do so to protect himself against attacks by them. And yet, when pressed, his lawyers could not point to evidence that any of his posts about them were really tied to any specific criticism they had offered of him.
In addition, Trumpâs lawyers argued that Trumpâs posting of what was purported to be a statement by the Fox News commentator Jesse Wattersâthat liberal activists were caught lying to the judge in an attempt to get on the juryâwas merely a ârepostâ and not a statement by the ex-president.
But the judgeâs careful review of the post itself showed that Trump did not just ârepostâ the statement but had altered it, adding the last portion about lying to the judge. Even if it had been a mere repost, the judge said spreading comments that violated the order still justified holding Trump in contempt.
The most important aspect of the order, however, is what the judge did not do, at least for now. Merchan did not put Trump in jail, which the judge had the discretion to do under the law.
But Merchan noted the limitation on the financial penalty he could impose, which is restricted by statute to $1,000 per violation. He also explained he understands the likely limited effectiveness of such a penalty in the case of someone who âcan easily afford such a fine.â
Justice Merchan concluded his order by saying that because he does not have the discretion to impose a higher financial penalty than what the relevant statute permits, in the case of someone like Trump, for whom such a fine might not deter him from violating the order again, âjail may be a necessary punishment.â
Merchan is clearly signaling to the former president that further violations of these gag orders could very well result in incarceration. In fact, I think itâs likely that the next punishment for any violations will be just that.
Will Trump poke the bear again? We saw in the civil fraud case against Trump, his family members, and Trump companies, that Justice Arthur Engoron had to issue several orders in which the punishment for similar violations resulted in escalating penalties: punishment that increased in potency for multiple violations. The first violation resulted in a fine of $5,000. The second, $10,000.
Similarly, after E. Jean Carroll won her first case against Trump for defamation, resulting in a judgment in her favor of $5 million, Trump went right out and maligned Ms. Carroll again. Those statements resulted in Carroll filing a new lawsuit against Trump, with a jury escalating the penalties there too: in the amount of $83 million.
Itâs an open question whether Trump has engaged in similar conduct even after this second judgment, and whether that will lead to a third case and a possible judgment in the hundreds of millions of dollars.
In Judge Merchanâs recent order, he concludes with the following statement: âDefendant is hereby warned that the Court will not tolerate continued willful violations of its lawful orders and that if necessary and appropriate under the circumstances, it will impose an incarceratory punishment.â
In other words, if Trump crosses the line again, he might find himself jailed.
While $1,000 finesâeven nine of themâmight not seem like much to the defendant, the threat of incarceration, for up to 30 days for each violation of the order as permitted under the relevant statute, is real. And Justice Merchan does not seem reticent to impose such a penalty should Trump continue to put the integrity of the trial in jeopardy by attacking those involved in it.
Financial penaltiesâeven ones totaling in the tens of millionsâdo not seem to phase the former president. But the prospect of actual jail time, serving as a Sword of Damocles over his head, might change Trumpâs calculus.
