Judge Juan Merchan found Donald Trump in contempt of court on Tuesday for repeatedly violating the gag order in the former president’s New York hush money case. Merchan fined Trump a total of $9,000 for bucking the order against publicly commenting on court staff, prosecutors, prospective jurors, or the judge’s family — and lamented that New York state law prevented him from laying down a steeper penalty.
Penalizing Trump $1,000 for each infraction “unfortunately will not achieve the desired result,” the judge said, adding that the court “must therefore consider whether in some instances jail may be a necessary punishment.”
In other words, if Trump keeps running his mouth or posting on Truth Social about witnesses for the prosecution — including Michael Cohen, his former lawyer and fixer, and Stormy Daniels, the porn star whose alleged hush-money payment ahead of the 2016 election is the primary basis for the trial — then Merchan could order Trump to be locked up.
Trump’s team is ready for such an order, however, and has a plan in place to keep him out of jail should it come down. Two people familiar with the matter tell Rolling Stone that several Trump advisers and attorneys have briefed the former president on the plan, which involves sprinting to file an emergency writ of habeas corpus that they are confident would win an emergency stay of a potential contempt order. One of the sources refers to the plan as Trump’s “jailbreak” strategy.
The sources say Trump’s advisers have told him they believe the stay would be granted before New York authorities would be able to sort out the logistical nightmare of getting Trump into a jail cell when he has an armed Secret Service detail with him at all times. Trump would never have to wear a jumpsuit during the criminal trial, even if he were remanded, at least one lawyer close to the former president has assured him. (Rolling Stone reported last year that Trump has been privately horrified by the idea of being made to wear “one of those jumpsuits.”)
Todd Blanche, Trump’s lead attorney in the criminal trial, declined to comment Tuesday evening on the plan to keep Trump out of jail should Merchan remand him. But reached for comment, Alina Habba, another attorney and legal spokeswoman for Trump, simply replied: “The allegations and gag order against President Trump are baseless election interference and we are confident that the truth will prevail.”
It is unclear whether Merchan will ever actually remand Trump, of course — even if Trump continues to flout the gag order.
“If there’s any evidence of a dual system of justice, it’s the fact that Donald Trump has avoided being held in contempt and remanded to jail in this case, unlike any other criminal defendant who would have been remanded ages ago,” says Bradley Moss, a lawyer specializing in national security and government transparency matters. “The only universe in which I expect a contempt order to implicate prison time, though, is if Donald Trump is convicted at trial and Judge Merchan incorporates that contempt ruling into a sentencing decision.”
Trump has been betting Merchan won’t impose any significant punishment for his violations. Rolling Stone reported earlier this month that Trump privately boasted that he could attack Merchan’s daughter without repercussions because he had tested judges and prosecutors on gag orders in the past without any serious consequences — including last fall when Judge Arthur Engoron, who presided over Trump’s civil fraud trial, threatened him with jail time.
The punishment Merchan handed down Tuesday is the stiffest Trump has faced, and Trump’s team removed the Truth Social posts deemed violations ahead of the 2:15 p.m. deadline Merchan gave them to do so. Merchan will hold another hearing on Thursday to consider four additional instances in which prosecutors say Trump violated the gag order.
Trump and his team, for now at least, still see the gag order as a political tool. The presumptive Republican presidential nominee has regularly tried to rally support around the idea that Democrats want him in jail, and his team started fundraising off Merchan’s contempt ruling almost immediately after it was handed down, sending an all-caps email to supporters about how he is being “silenced.”
Trump elaborated on Truth Social later on Tuesday. “This Judge has taken away my Constitutional Right to FREE SPEECH,” he wrote. “I am the only Presidential Candidate in History to be GAGGED. This whole ‘Trial’ is RIGGED, and by taking away my FREEDOM OF SPEECH, THIS HIGHLY CONFLICTED JUDGE IS RIGGING THE PRESIDENTIAL OF 2024 ELECTION. ELECTION INTERFERENCE!!!”
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