Donald Trump received the clearest threat of jail time yet in his New York criminal trial after a judge said on Tuesday that “jail may be a necessary punishment” for future gag order violations from the former president, a statement legal experts say could have sweeping consequences on his 2024 presidential election bid.
Judge Juan Merchan, who is presiding over the criminal hush money trial against Trump, found him in contempt for nine violations of his gag order due to various social media posts about witnesses in the trial, with a fine of $1,000 for each instance and an order to delete the posts. Trump, the Republican front-runner to face off against President Joe Biden, has decried his four criminal cases as “election interference,” a claim that legal experts told the Washington Examiner could be authenticated if Merchan decides to jail him over social media posts before the trial’s expected end in late May.
“Judge Merchan is operating within his discretion, but I think he would be an automaton if he didn’t appreciate that the world is watching him and how any imprisonment would be viewed by most as true election interference — not in the hyperbolic way that Trump routinely says this trial is amounting to by its very existence,” Alton Harmon, legal analyst and corporate general counsel, told the Washington Examiner.
Former federal prosecutor Neama Rahmani told the Washington Examiner it would mark an “unprecedented step” to jail a former president and candidate during an election year, a move that would come with its own set of public policy problems.
While Harmon and Rahmani both said jailing Trump seems unlikely, Rahmani stressed that doing so “may lead to mass protests or even civil unrest.”
“I suspect it would cause widespread condemnation and countrywide protests from his base,” Harmon said.
Shannon Frison, an attorney and former associate justice for the Massachusetts Superior Court, told the Washington Examiner she views Merchan’s decision a “thoughtful order.”
“I do think that the threat of incarceration is real because that is what Merchan has at his disposal,” Frison said, adding that the only options for him are continuing to fine $1,000 per violation or jail time.
When asked whether a judge in Merchan’s position must consider the threat of political instability or unrest when he makes the threat to jail a former president, Frison said, “I think you have to.”
“Given the effect that he has on what we call his base, a segment of Republicans … I think that him being incarcerated for any amount of time for any behavior would absolutely have some effect on” the public’s reaction, said Frison, who served on the bench for 15 years.
The gag order prohibits Trump from “making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceedings” and “public statements about any prospective juror or any juror.”
On April 23, Merchan indicated he may rule against Trump after prosecutors with Manhattan District Attorney Alvin Bragg‘s office argued Trump violated the gag order at least 10 times earlier this month.
“You’re losing all credibility,” Merchan told Trump attorney Todd Blanche at one point during a hearing over the gag order, noting that the former president’s team had presented no case law as it made its defense.
Harmon emphasized that the seven-day delay for Merchan to issue his order on the alleged gag order violations could be a point that Trump’s legal counsel may want to challenge, noting that “without the finding, he let Trump keep racking up the violations.”
Meanwhile, Merchan has already scheduled a hearing on Thursday over four more alleged violations of the order that prosecutors surfaced.
Many of the comments Trump either reposted or made himself on social media surrounded two high-profile witnesses in the case, including his former attorney and fixer Michael Cohen and porn star Stormy Daniels, whose $130,000 payment from Cohen is at the core of the indictment.
Despite their crucial roles in the prosecutors’ case against Trump, Cohen and Daniels are not subject to a gag order and have taken every opportunity before and during the trial to disparage Trump on the airwaves and in social media posts.
“Trump’s counsel has every right to bring this to the attention or the court and the prosecution has every reason to fear that comments like those made by Cohen are extremely detrimental,” Harmon said, noting that despite Cohen’s recent vow to restrain his online comments about the trial, it is “unlikely that he will be able to keep his promise.”
Merchan made clear in his eight-page order that he would evaluate the defense’s gripes about extrajudicial statements by witnesses at a later date in order to keep the matter of Trump’s comments separate from those of witnesses.
“The Court is cognizant that Defendant has made, through the various motions he has filed during the pendency of this case, numerous references to the commentary of Michael Cohen and Stormy Daniels and as indicated above, will consider such in any future filings,” Merchan wrote, adding that he believes it is not necessary at this time to “exclude any of the currently protected parties.”
Explaining the judge’s reasoning, Harmon said, “This is in part because a defendant (or prosecution) intimidating witnesses or negatively influencing the trial is the most important issue, with any violations potentially leading to a mistrial.”
Trump had already faced fines of up to $15,000 over gag order violations in cases that came before this one, specifically during the civil business fraud trial brought by New York Attorney General Letitia James, a Democrat, which resulted in a ruling that he and his companies pay more than $355 million.
The former president also brushed up against the notion that he could one day be behind bars when he showed up for his arraignment last summer in Fulton County, Georgia, at the infamous rat-infested county jail. There, Trump stood for a mug shot that immediately inspired merchandise emblazoned with the photo, and the image has in some ways served as a symbol of the four indictments he describes as a “witch hunt” on a near-daily basis.
Mike Davis, a Trump ally and founder of the Article III Project, claimed last week that “they’re gonna turn him into Nelson Mandela,” predicting that the act of jailing Trump would only backfire against those who don’t want to see him reelected.
Trump has pleaded not guilty to 34 counts of falsifying business records related to his reimbursement to Cohen for the lawyer’s hush money payment to Daniels in the final days of the 2016 campaign. Daniels claims she had a sexual encounter with Trump in 2006, an allegation he vehemently denies.
Testimony in the trial resumed on Tuesday as former Cohen banker Gary Farro took the stand for cross-examination by Blanche, who appeared to be attempting to cast doubt on Farro’s testimony and use him to critique Cohen, according to press reports.
Meanwhile, other Trump allies attended the trial on Tuesday, including his adult son Eric Trump and Texas Attorney General Ken Paxton.
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The former president could face up to four years in prison if he is convicted in the hush money trial, though many legal experts have said that this first-time offense may not result in any jail time. That evaluation could change depending on whether Trump continues to be found in violation of the gag order as the trial progresses.
“Repeated and intentional violations are a basis for criminal contempt and jail times,” Rahmani said.
