Opinion: Why jailing Trump for violating the gag order could end up helping him

Editor’s note: W. James Antle III is executive editor of the Washington Examiner magazine and author of “Devouring Freedom: Can Government Ever Be Stopped?” The views expressed in this commentary are his own. View more opinion on CNN.

Former President Donald Trump and Judge Juan Merchan are playing a high-stakes game of legal chicken in the ongoing hush money trial, with a renewed threat of incarceration that could roil the presidential race.

W. James Antle III - Courtesy W. James Antle III
W. James Antle III - Courtesy W. James Antle III

Fines totaling $10,000 haven’t deterred Trump from repeatedly defying the gag rule in the case, with the former president and presumptive Republican nominee found in contempt of court for the 10th time on Monday. Trump is prohibited from making personal attacks on witnesses, prosecutors, jurors, court personnel and their familiesProsecutors haven’t asked for jail time for Trump’s violations.

But it is possible that threats of jail time won’t have the desired effect either, as Trump may believe such a penalty will be the best illustration yet of a politically biased legal system run amok. “Frankly our Constitution is much more important than jail,” Trump said on the 12th day of his trial over falsifying business records in a hush money scheme to improve his chances in the 2016 election.

Jailing Trump could give him yet more ammunition for rallying his base against what he calls a witch hunt and describes as a form of election interference. It could also be a fundraising boon, which Trump sorely needs to pay legal expenses and keep up with Democrats. (Biden’s principal campaign committee went into April with nearly twice as much as Trump’s main campaign account.) His campaign says it raised $7.1 million from his booking and mug shot alone in the Georgia election interference case. The windfall from this imagery could be even greater.

It would also mean that the first real possibility of Trump sitting in a cell would come from the criminal case that many legal experts widely consider the weakest of the four against him.

In a courtroom sketch, Judge Juan Merchan rules Monday that former President Donald Trump violated the gag order in the hush money trial for comments about the makeup of the jury. - Jane Rosenberg
In a courtroom sketch, Judge Juan Merchan rules Monday that former President Donald Trump violated the gag order in the hush money trial for comments about the makeup of the jury. - Jane Rosenberg

Merchan appears to understand the risk as well as the sheer weight of his decision over possible jail time. “Mr. Trump, it’s important you understand, the last thing I want to do is put you in jail. You are the former president of the United States and possibly the next president as well,” the judge said. “The magnitude of this decision is not lost on me, but at the end of the day I have a job to do.”

However, no previous adverse legal judgment against Trump has seemed to make him a less competitive general election candidate, including the verdicts in the E. Jean Carroll civil cases over sexual abuse and defamation and the New York civil fraud judgment.

The handing down of multiple indictments boosted Trump in the Republican primaries. The beginning of the hush money trial hasn’t noticeably hurt Trump in polling matchups against President Joe Biden. Most of the country appears divided over whether Trump is being treated more harshly or lightly than other defendants, according to a CNN poll conducted by SSRS in April, but about three-quarters of voters backing Trump say they will still support him even if he is convicted of a crime. (Trump has pleaded not guilty and denied all wrongdoing in the four cases against him.)

In this particular case, Trump could be jailed for speaking out during a trial over allegations that some critics say should be a case of misdemeanor charges only, while an accuser such as former Trump attorney Michael Cohen has been nearly ubiquitous in the press. (Merchan has warned Cohen that if he keeps criticizing Trump the gag order barring the former president from comments about witnesses, jurors and others might no longer apply to references to him.) One of Trump’s gag rule violations was reposting a link to a New York Post column by George Washington University law professor Jonathan Turley attacking Cohen’s credibility on the basis of past perjury.

Discussions of offenses for which Cohen pleaded guilty seem like fair play for public debate rather than an attempt to threaten or intimidate a witness. Trump and his supporters could argue a double standard here.

All these developments come against the broader backdrop of Trump blaming his legal woes on his political opponents — Biden and allied Democrats. While Trump’s rhetoric may be overstated, Democrats who purport to be defending democracy, norms and the rule of law, not least through these prosecutions themselves, are taking a risk.

The plain fact is that Trump is the only political figure of his stature to face two impeachments, four indictments and a civil fraud trial. Some of his political appeal appears to stem from voters thinking the powers that be will not allow them to choose him again. Putting him in jail before he is convicted of any of these alleged offenses during a campaign in which he is leading in many polls would reinforce all these arguments.

There are obvious risks to Trump, too. The unprecedented sight of a presidential candidate behind bars could make all these charges seem more real, and there is no telling how voters will react. In what is shaping up to be a close race for the presidency, even a small shift could be significant.

Juries are also unpredictable. There is no way of knowing in advance how they would react to Trump going to jail for violating the gag rule. It is possible that it would make him a more sympathetic defendant. Jurors could also be swung toward a conviction if a jailing reinforces their belief in his guilt or they don’t respond well to his defiance. Either way, the voters at home aren’t the only audience Trump needs to reach.

Nevertheless, given the way Trump’s past legal problems have largely played out, it is easy to see how he could turn a brief incarceration to his advantage. Voters may well decide that jailing the former president is not the way they want to see presidential candidates treated in this country.

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