Manhattan prosecutors commenced their efforts on Monday to convince a jury that Donald Trump is culpable of 34 felonies in his hush money case. The following day, they will seek to persuade the judge that he should face prompt consequences by requesting his detention for contempt.
According to the prosecutors, Trump has continuously breached a gag order that prevents him from launching attacks against witnesses, jurors, and other individuals linked to the case. Justice Juan Merchan has scheduled a hearing on Tuesday morning, without the presence of the jury, to assess the claims made by the prosecutors.
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If Merchan agrees that Trump has violated the gag order, he will have to decide how to address the situation. He could choose to issue a strong warning, impose a small fine, or even consider a brief incarceration.
According to several former prosecutors, they anticipate Merchan to exercise leniency in the case. However, they also acknowledge that the circumstances are constantly changing, unpredictable, and, needless to say, completely unprecedented.
According to Diana Florence, a former Manhattan prosecutor, Judge Merchan is committed to providing every opportunity for the defendant to rectify the situation and improve as a defendant.
According to prosecutors, Trump has demonstrated a lack of willingness to restrain his public rhetoric. During the trial’s first day on April 15, three alleged violations of the gag order were brought to light. One instance occurred on April 13, when Trump referred to Michael Cohen, a key witness for the prosecution, as a “disgraced attorney and felon” in a post on Truth Social.
According to prosecutors, on April 18, Trump was accused of violating the gag order multiple times within a span of three days. One particularly notable instance involved a post on Truth Social, where Trump quoted a Fox News host who claimed that “They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury.”
Prosecutors argue that these statements are deliberate violations of the judge’s gag order and could potentially compromise the integrity of the ongoing trial. They have requested the judge to impose a fine of $1,000 for each violation. In addition, they have also proposed that Trump be cautioned about the possibility of facing further penalties, including a maximum of thirty days of imprisonment, for any future violations.
Trump’s team, on the other hand, stood firm in their belief that the posts were completely lawful. Trump lawyer Emil Bove maintained that Trump’s comments about Cohen were a direct response to the media’s coverage of the former consigliere-turned-state’s-witness.
According to Rebecca Roiphe, a former prosecutor and professor at New York Law School, the gag order currently in place does not allow for any exceptions, including rebuttals. However, Roiphe suggests that the judge has the authority to potentially add an exception if deemed necessary.
She mentioned that it is worth considering the fact that the purpose of the gag order is to protect the fairness of the proceedings. If the defendant would be at a disadvantage because others in the media are discussing the case, then this point should not be dismissed.
In recent weeks, Trump has continuously tested Merchan’s patience. The judge initially issued the gag order on March 26. However, on April 1, after Trump verbally attacked Merchan’s adult daughter, the judge “clarified” that the gag order also includes prohibiting attacks on the judge’s family. It’s worth noting that the order does not prevent Trump from attacking the judge directly.
Merchan reprimanded Trump last week for his muttering and gesturing while in the presence of a prospective juror. He even expressed doubt to Trump’s lawyer, Todd Blanche, about the ability to prevent Trump from publicly commenting on witnesses in the case.
Former prosecutors agree that it would be highly unlikely for Merchan to imprison the former president, Trump, for contempt, at least at this point. Despite Merchan’s frustration with Trump’s actions, the consensus among these legal experts is that such a drastic measure is currently unimaginable.
Florence expressed her perspective on a potential extreme measure that could be taken, stating that it would be overly severe and draconian. She believed that such an action should only be considered as an absolute last resort, emphasizing that it would only be necessary if President Trump left no other choice. While acknowledging that the president seemed to be heading down that path, she questioned whether he had reached that point yet.
Adam Kaufmann, a former prosecutor in the Manhattan District Attorney’s Office, anticipates that the judge will administer a lenient approach.
In an email, Kaufmann speculated that the individual in question would likely receive a direct warning initially, followed by a fine if the behavior persisted. However, Kaufmann acknowledged that this was merely a guess and emphasized the uncertainty surrounding the situation.
Elizabeth Roper, a partner at Baker McKenzie and former prosecutor, believes that a fine is the most likely outcome.
According to the expert, Merchan might opt for a less severe measure, such as a form of restriction, rather than immediately resorting to imprisonment. This is because incarceration is considered a drastic step and is not commonly taken.
According to Peter Tilem, a former Manhattan prosecutor who now runs his own firm, the situation is a nightmare for the First Amendment. This is because political speech is strongly protected under the First Amendment. If Trump’s lawyers were to appeal a contempt ruling, they could argue that the posts were part of Trump’s political campaign. However, success in such an appeal would be uncertain, and it would further complicate an already complex legal process.
In fact, Trump has already challenged the gag order on constitutional grounds by filing an appeal. However, a New York appellate judge promptly dismissed Trump’s attempt to use the appeal as a means to postpone the trial.
Tilem highlighted the potential complications that arise when attempting to impeach a presidential candidate during an ongoing campaign. He emphasized the constitutional quagmire it creates and questioned the appropriate course of action in such a situation.
If Merchan does hold Trump in contempt and seeks to impose a penalty that would truly affect the former president, there are limited options apart from a fine or jail sentence. In theory, Merchan could issue an order prohibiting Trump from using social media during the trial, as was done in the 2019 criminal case against Trump ally Roger Stone when he repeatedly targeted the judge. However, it’s important to note that such an order would likely face a strong appeal.
According to law professor Roiphe, there is a strong likelihood that he will be hesitant to take such action due to the significant First Amendment concerns involved.
