Opinion: Trump should go to jail if he violates judge’s gag order again

Editor’s Note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee for the first impeachment and trial of then-President Donald Trump. The views expressed in this commentary are his own. Read more opinion at CNN.

Tuesday morning brought one of the most striking moments yet in the Manhattan criminal trial of former President Donald Trump, proceedings that have already been packed with consequential developments.

Norm Eisen - Courtesy Norm Eisen
Norm Eisen - Courtesy Norm Eisen

In a low-key manner, Justice Juan Merchan delivered a high-impact message to Trump: that he was in contempt of court. Merchan sanctioned Trump for violating his gag order for nine posts and reposts on his Truth Social site and campaign website, targeting witnesses and jurors in his Manhattan prosecution. (One of the 10 statements at issue was arguably in response to external attacks on Trump and so was not sanctioned.) The judge ordered Trump to pay $9,000 in fines for the comments — the statutory maximum of $1,000 for each violation — and to remove all of the offending posts, which Trump promptly did.

But Merchan did not stop there. In his written order, summarized from the bench at the start of the trial on Tuesday, the judge also warned Trump that if he persists in violating the gag order, he faces jail time. Merchan explained that the maximum fine of $1,000 per offense may not suffice as a deterrent for wealthier individuals found in contempt of court, and that the court “must therefore consider whether in some instances, jail may be a necessary punishment.”

Trump had persisted in attacking a witness outside the courtroom even after the prosecution started the process of seeking the contempt ruling delivered Tuesday — and, as the judge’s order suggests, the former president’s history does not inspire confidence that he will stop. Moreover, before the trial began, Trump essentially dared the judge to incarcerate him, claiming jail time would make him a “modern-day Nelson Mandela.”

If Trump continues, the judge should take him up on it. For Merchan to bring this to an end, he may have to give Trump a night behind bars, following with longer stays in the “clink,” in Trump’s words, until he honors the judge’s order.

Trump’s pattern of noncompliance is clear: Four more alleged violations were documented by the prosecution alone after the 10 that they had previously alleged to the judge. Merchan scheduled a hearing for Thursday on these four new statements, which will bring additional penalties beyond the fine levied Tuesday if the judge agrees they violated the gag order. That makes a total 14 incidents that prosecutors have complained about since April 10.

When the judge has the hearing on Thursday on incidents 11 to 14, which are likely to elicit fines and warnings only since Trump had not yet been held in contempt when he made the four new statements, he should tell Trump in no uncertain terms that if there is a 15th incident, he will promptly act to give Trump an overnight stay in jail — imposing longer ones if Trump keeps it up.

Incarceration for repeated contempt is hardly unheard of; indeed, it’s explicitly contemplated by the law as a punishment. The step would of course be hugely controversial here because of the identity of the defendant. But the core American principle that no one is above the law requires the judge to look past that at some point. After the three decades I have spent in courtrooms as an attorney, I tend to think Trump has already gotten a break while anyone — anyone — else would have gotten more severe treatment for the same actions.

Reading the powerful written contempt order, I think Merchan seems ready to follow through on his words and take the next, carceral step if Trump keeps making statements about witnesses and jurors after the 14th time. If Trump is allowed to run roughshod over the judicial system and disobey orders of the court, that threatens the fair administration of justice as well as the perception of it.

Ergo the judge’s severe written warning this morning. Now we will see if Trump is chastened, or if he meant it when he dared the judge to step him back.

The most immediate threat that Trump’s statements represent is to the jury, and Merchan made that clear in his strong words. Trump was sanctioned for claiming on his Truth Social platform that there were “undercover Liberal Activists lying to the Judge in order to get on the Trump Jury.” The next day, one juror asked to be excused after being selected, citing concerns that her identity would be revealed. And that’s not an idle fear: Trump has attacked many of those he perceives as a threat, even court staff and grand jurors in other proceedings — and he is well aware of the impact his words have on his followers. That brings unwanted risk of revelation.

The judge’s sanctions — and the warning that more will come if needed — also responded to Trump training his considerable ire at the expected witnesses in this case, including former Trump lawyer Michael Cohen and adult film actress Stormy Daniels. Trump’s words can have at least two dangerous consequences: subjecting these individuals to an onslaught of personal attacks, and attempting to taint the jury pool by injecting into the public sphere arguments his lawyers cannot make in court.

Perhaps the new sanctions — or those likely to come in response to the newest four allegations of gag order violations — will be the end of it. Trump did eventually cease his contempt in the civil fraud trial when the judge there warned Trump was reaching the end of his tether.

But if he does not stop in his criminal trial, and the judge acts, Trump will have no legal recourse. He already lost one effort to attack the gag order in the New York appellate court. As I have previously explained, Trump’s argument that the gag order infringes his First Amendment rights is specious. And his repeated assertions that Merchan is somehow out to get him are also unmerited. In any event, even if Trump believes those things, that is no excuse under New York law to violate a court order.

Trump may think this is a win-win situation: Either the judge backs down and Trump continues to attack witnesses and jurors freely, or the judge steps up and actually imprisons him, and Trump will declare himself a political prisoner. But Trump’s claims of martyrdom are self-evidently risible, and the judge’s responsibility is only to protect the integrity of his proceedings and the rule of law.

If Trump continues to violate the gag order — even just once, after already having been found to be in contempt — then Merchan should follow through and incarcerate him, as the law clearly provides. The Secret Service has already been negotiating with local law enforcement about protection for a president behind bars. As a former White House official who dealt regularly with the Secret Service relating to a sitting president, I do not think the unique security concerns here for a former one will be an impediment to complying with the punishment handed down by the judge.

Such a ruling would send a clarion message to the jurors in this case, and to the American people: Anyone who intimidates ordinary private citizens fulfilling their civic duty will pay a severe price, even if you are a former president.

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