Manhattan prosecutors wasted no time in their pursuit of justice as they commenced their argument on Monday, aiming to convince the jury that Donald Trump is guilty of 34 felonies in his hush money case. Their determination to hold him accountable doesn’t stop there. On Tuesday, they will petition the judge to hold Trump in contempt, seeking a swift consequence for his actions.
According to the prosecutors, Trump has been consistently disregarding a gag order that prevents him from criticizing witnesses, jurors, and other individuals involved in the case. Justice Juan Merchan has arranged a hearing on Tuesday morning, excluding the jury, to evaluate the prosecutors’ claims.
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Many former prosecutors anticipate that Merchan will show leniency in this case. However, they also recognize that the circumstances are constantly changing, unpredictable, and, of course, unprecedented.
According to prosecutors, Trump has demonstrated little inclination to restrain his public rhetoric. During the trial’s first day on April 15, they pointed out three supposed instances of violating the gag order. One such 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.
Prosecutors claimed that Trump had violated the gag order multiple times between April 16 and April 18. One particular instance that stood out was a post on Truth Social, where Trump quoted a Fox News host who accused undercover Liberal Activists of lying to the Judge in order to serve on the Trump Jury.
According to prosecutors, these statements are considered “willful violations” of the judge’s gag order and have the potential to undermine the integrity of the ongoing trial. They have requested that Trump be fined $1,000 for each violation. In their original motion for contempt, following the first three alleged violations, they also emphasized the need to warn Trump about potential consequences, including additional fines and even a possible thirty-day jail term, for any future violations.
The lawfulness of the posts was defended by Trump’s team. Trump lawyer Emil Bove argued that Trump’s posts about Cohen were a response to the comments made by the former consigliere-turned-state’s-witness in the media about the former president.
According to Rebecca Roiphe, a former prosecutor and professor at New York Law School, the current gag order does not have an exception for rebuttals. However, the judge has the authority to make amendments and include one if deemed necessary.
In a recent incident, Merchan expressed his disapproval towards Trump for muttering and gesturing while in the company of a potential juror. He even went as far as questioning Trump’s lawyer, Todd Blanche, about his ability to prevent Trump from making public comments about the witnesses involved in the case.
Former prosecutors agree that it would be highly unlikely for Merchan to incarcerate the former president, Donald Trump, for contempt, at least at this point in time. While Merchan may be frustrated by Trump’s actions, the current circumstances and legal considerations make such a decision almost unthinkable.
“That would be an incredibly drastic and severe action to consider,” Florence expressed. “I believe it should only be used as a final option. It seems like it would only happen if Trump leaves no other choice. He may be heading in that direction, but I’m not certain he has reached that point just yet.”
Adam Kaufmann, a former prosecutor in the Manhattan District Attorney’s Office, predicts that the judge will adopt a lenient approach.
In an email, Kaufmann speculated that the individual in question will receive a direct warning followed by a fine on a subsequent occasion. However, Kaufmann acknowledged that this is merely speculation and that the actual outcome remains uncertain.
According to former prosecutor Elizabeth Roper, who is now a partner at Baker McKenzie, it is highly probable that a fine will be imposed.
According to the expert, Merchan would likely opt for a course of action that falls short of imprisonment, considering that incarceration is an extreme measure that is rarely taken.
According to Peter Tilem, a former Manhattan prosecutor who now runs his own firm, the situation is a First Amendment nightmare. This is because political speech is heavily protected under the First Amendment. If Trump’s lawyers were to appeal a contempt ruling, they could argue that the posts in question were part of Trump’s political campaign. While success in this argument is not guaranteed, it would further complicate an already complex legal proceeding.
Trump has already appealed the gag order on constitutional grounds. However, a New York appellate judge swiftly denied Trump’s attempt to use the appeal as a means to postpone the trial.
According to Tilem, one of the main reasons why attempting to impeach a presidential candidate during a campaign is a bad idea is because it can lead to a complex constitutional dilemma. He questions the appropriate course of action in such a situation.
If Merchan holds Trump in contempt and wishes to impose a penalty that will truly affect the former president, there are limited options between a fine and imprisonment. One possible action would be for Merchan to issue an order prohibiting Trump from using social media during the trial. This approach was taken by a judge in the 2019 criminal case against Trump ally Roger Stone, who continuously attacked the judge. However, it is important to note that such an order would likely face a strong appeal.
According to Roiphe, a law professor, he believes that the individual in question will be hesitant to take such action due to the significant First Amendment concerns involved.
