Why isn’t Donald Trump in jail already?
Donald Smith would be in a cell by now!
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“Why isn’t Donald Trump in jail already?”
It’s a fair question, particularly in light of the flagrant gag order violations in Trump’s Manhattan criminal trial, both by the man himself and his surrogates.
Justice Juan Merchan made clear in a ruling on April 30 that any further violations would land the defendant in custody. And yet, Trump remained free over the weekend to attend his son’s high school graduation (briefly) while he continues to spew invective on social media.
The short answer to the question at the top of this piece is: Donald Trump isn’t in jail because prosecutors haven’t asked for him to be.
The previous 10 contempt findings were precipitated by motions filed by the district attorney’s office requesting the court to hold the former president in contempt. Prosecutors filed no such motions last week, and thus there’s nothing for the court to rule on.
The longer answer is: Well … it’s complicated.
Contempt of court as a way of life
On March 26, Justice Merchan signed an order restricting Trump’s extrajudicial statements regarding witnesses, counsel, and jurors in his criminal case. The judge barred him from “making or directing others to make public statements” which would violate the order, meaning that Trump can’t simply launder his attacks through his spokesman Steven Cheung, a blowhard who makes Baghdad Bob look circumspect by comparison, or Alina Habba, his sometime lawyer and the official “legal spokesperson” for his Save America PAC.
Trump immediately violated the ruling by attacking Michael Cohen and Stormy Daniels, both directly and by reposting content from allies like Jonathan Turley and Andrew McCarthy calling Cohen a “serial perjurer” and rubbishing his potential testimony. At the contempt hearing on April 23, Trump’s lawyer Todd Blanche argued that it was just “common sense” that Trump could insulate himself from the strictures of the gag order by sockpuppeting attacks and putting them in quotation marks. But asked for caselaw to support his claim, the attorney was forced to admit there was none.
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On April 30, Justice Merchan found the defendant had violated the gag order nine times, calling it “counterintuitive and indeed absurd, to read the Expanded Order to not proscribe statements that Defendant intentionally selected and published to maximize exposure.” But the judge lamented that Judiciary Law § 751 left him just two options: a $1,000 fine, or incarceration up to 30 days.
“While $1,000 may suffice in most instances to protect the dignity of the judicial system, to compel respect for its mandates and to punish the offender for disobeying a court order, it unfortunately will not achieve the desired result in those instances where the contemnor can easily afford such a fine,” he wrote, adding that “Defendant is hereby warned that the Court will not tolerate continued willful violations of its lawful orders and that if necessary and appropriate under the circumstances, it will impose an incarceratory punishment.”
The judge repeated the admonition in a May 6 order finding Trump in contempt for a tenth violation, which predated the April 30 ruling and was thus deemed to have preceded his final warning that further violations would land him behind bars.
This effectively locked in every party to this case. Trump knows that if he violates the gag order, he’ll wind up in custody. The prosecutors know that if they move for contempt again, they’ll have to deal with the logistical headache of jailing the former president in the middle of his trial. And Justice Merchan knows that he’ll have to actually pull the trigger and do it after making such an explicit threat.
Surrogate attack dogs
Since the contempt ruling, Trump has largely toed the line and steered clear of violating the gag order directly. But there’s a decent argument that his agents have not.
Perhaps embarrassed by jokes about him napping alone at the defense table during the first two weeks of the trial, Trump has been accompanied in court the past two weeks by an expanding retinue of supporters, including Republican politicians expressing their support for the Dear Leader. As The New Republic’s Greg Sargent notes, the whole point of this exercise is to convey contempt for the proceedings — in the colloquial sense — delegitimizing the judicial process when it is applied to their friends, even as they plan to weaponize it against their enemies.
But if these politicians are acting as his surrogates, is it not also contempt in the legal sense for them to do what Trump cannot? Because Trump’s pals are certainly saying things that would land him in jail.
“This guy is a convicted felon who admitted in his testimony that he secretly recorded his former employer, that he only did it once allegedly and that this was supposed to help Donald Trump,” Sen. JD Vance vamped outside the courthouse. “Does any reasonable, sensible person believe anything that Michael Cohen says?”
“Among the atrocities here, the judge’s own daughter is making millions of dollars doing online fundraising for Democrats,” said House Speaker Mike Johnson when it was his turn to show the colors.
[Note from Aaron: I put together a supercut of Republicans, some of them dressed just like Trump, using the same talking points to attack Merchan’s daughter outside the courtroom. You can watch it below.]
Sen. Tommy Tuberville and Rep. Bob Good went on right-wing TV and explicitly connected their speech to the gag order.
“Hopefully we have more and more senators and congressmen go up every day and represent him. And being able to go out and overcome this gag order, that’s one of the reasons we went is to be able to speak our piece for President Trump,” Tuberville told Newsmax.
“They’ve got this gag order against him. That’s why we went up there, so we could say the things this corrupt judge is not allowing him to say,” Rep. Bob Good huffed to Fox Business’s Stuart Varney, adding that Justice Merchan’s daughter is “raising tens of millions of dollars for the Democrat Party off this very trial.” (Watch below.)
New York Magazine’s Andrew Rice suggested on MSNBC that he’d even seen Trump editing drafts of the attacks in advance.
“While Michael Cohen was testifying against him, he was actually going and going through and annotating and editing the quotes that these people were going to say,” he told Chris Hayes.
And indeed Trump appeared to take credit for extrajudicial statements by his allies, bragging in his hallway therapy session on Tuesday that “I do have a lot of surrogates and they are speaking very beautifully and they come from all over Washington and they’re highly respected and they think this is the biggest scam they’ve ever seen.”
I dare you to put me in jail
And it’s not just his surrogates who are violating the order.
Trump himself put several toes over the line last week with an attack on Assistant District Attorney Matthew Colangelo, whose previous gigs included stints with the New York Attorney General’s Office and the Justice Department.
“You have a lead person from the DOJ is running the trial, so Biden’s office is running this trial,” he babbled outside the courtroom on Thursday.
And in case anyone managed to miss the allusion, House Judiciary Chair Jim Jordan laundered Colangelo’s name into the news cycle with a nasty letter to the New York AG demanding a raft of internal prosecutorial communications from 2020 and earlier.
So why no motion for contempt?
Only the prosecutors know the answer to that question for sure, but we can make some educated guesses.
With respect to statements by his “surrogates,” proving that Trump “directed” MAGA politicians to make those attacks would be exceedingly difficult — it’s not like Donald Trump has to tell Matt Gaetz and Lauren Boebert to scream inanities. And putting Trump in jail at all, much less for something said by a third party, would ignite a political firestorm.
As for Trump’s own statement, putting ADA Colangelo at the center of a gag order which has the effect of jailing the former president, however briefly, would throw a spotlight on the lawyer that would certainly make him less safe, not more.
But mostly it seems like a motion for contempt would serve as a pointless distraction with this trial racing toward the finish line.
Michael Cohen has almost finished his testimony. The prosecution has one remaining witness, and the defense is unsure whether it intends to call former FEC Commissioner Bradley Smith. If Smith testifies, the prosecutors will call Adav Noti, the former associate general counsel at the FEC, as a rebuttal witness.
It’s possible, although highly unlikely, that Trump will testify. But if not, closing arguments and jury instructions are functionally the only things left before this case goes to the jury. The last thing prosecutors want to do is slow this train down with a contempt motion that prolongs the proceedings and functions as a magnet for the MAGA protesters who have largely ignored the trial.
The DA’s ultimate goal is to achieve a guilty verdict that will stand up on appeal in proceedings which are perceived by the public as nonpartisan. Jailing Trump before that verdict will ensure contentious post-trial appellate hearings where he’ll discredit the proceedings by blowing up a few hours confinement into months of screaming about his martyrdom.
In short, the juice ain’t worth the squeeze.
That’s it for today
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Thanks for reading.
It doesn't help that Trump controls the coffers of the Republican Party through appointing his loyalist and daughter-in-law to the highest levels of the organization. He is bribing oligarchs for cash and he has elected officials doing his bidding by deligitimizing the justice system. The GOP became a conduit for all of this. Not very law and order of them.
"...the juice ain’t worth the squeeze." Absolutely true. No Republican is going to admit that they were given orders from Trump, and as Michael Cohen has repeatedly said, Trump doesn't give direct orders. Let's get the trial completed and wait on the jury's verdict.