Contempt

Court started in Manhattan with a bang this morning, ending days of speculation about when Judge Merchan would rule on allegations Donald Trump violated the Judge’s gag order in that case. After telling Trump he can attend his son Barron’s May 17 graduation ceremony, the Judge promptly slapped Trump with the maximum fine—$1000 per occurrence—for contempt on nine of the ten possible violations prosecutors brought to his attention. Tonight we unpack the Judge’s order. You can read it in full here.

Bill Bramhall is an editorial cartoonist at the New York Daily News. You can find his work here and follow him on Twitter, where he’s @billbramhall

The penalty, which will disappoint many people because it doesn’t include custody, is consistent with what we’ve been predicting here. As with progressive discipline for your toddler, the Judge is giving Trump the opportunity to show that he’s learned his lesson. If he continues to violate from this point on, after the Judge has already imposed the maximum fine authorized by law, Trump will have amply demonstrated that there is no available sanction short of incarceration, even for a brief time, that is available to enforce the gag order. The Judge has now issued every conceivable warning.

But it was satisfying to see the Judge’s written order, which addressed the inadequacy of the fine head-on. That section alone made it worth the wait. The order also puts the spotlight on the contempt hearing scheduled for Thursday on allegations raised by the People after the first hearing. Trump seems to have backed off since that took place, and for the Judge, this is probably the best of all possible worlds. Having issued today’s order, and with new charges hanging over Trump’s head, the Judge can avoid the controversy that would be involved in putting the Republican Party’s presidential candidate in jail—while still ensuring his good behavior.

The order leaves little room to doubt what the consequences of future violations after this point will be, and it also clarifies what constitutes a violation. Trump’s lawyers claimed in court that reposting other people’s social media posts, no matter the content, was not a gag order violation. Judge Merchan dismissed that nonsensical notion swiftly, citing to Trump’s own boast that his seven million followers on Truth Social "get whatever I have to say, and quickly" when he posts there. It’s an interesting question of law because no court appears to have previously addressed reposting, but Judge Merchan, in his straightforward way, wrote in the order that “Lacking legal authority to guide its decision, this Court must, as defense counsel stated at the hearing, rely on common sense.”

Trump also argued there was no willful violation of the gag order “because the posts constitute protected political speech made in response to attacks by Michael Cohen and Stormy Daniels.” While acknowledging that the gag recognized Trump’s ability to respond to political attacks, Judge Merchan wrote that, “merely characterizing every one of Defendant's postings as a response to a ‘political attack’ does not make them so.”

Nonetheless, the Judge did not find Trump in contempt on the first allegation raised by the People, which involved a post on Truth Social on April 10, at 10:07 a.m. He found that the People failed to meet their burden of establishing the violation in regard to only this one of the nine charges. Prosecutors described the post in their motion as a repost of a post by Michael Avenatti, disgraced former lawyer and convicted felon, attacking Michael Cohen and Stormy Daniels. Trump added his own comment thanking Avenatti for “revealing the truth about two sleaze bags who have, with their lies and misrepresentations, cost our Country dearly!”

The Judge declined to hold Trump in contempt over this post because, on the evidence before him, he believed it wasn’t clear whether Trump was responding to two other posts he’d identified as attacks, which meant the People failed to meet their burden of proof on this one. But as to exhibits 2-9, which involved attacks on witnesses, and which Trump also claimed were political speech, the Judge found that the burden was met: “To allow such attacks upon protected witnesses with blanket assertions that they are all responses to ‘political attacks’ would be an exception that swallowed the rule. The Expanded Order does not contain such an exception.”

There is also a cautionary note in the Judge’s order, designed for Michael Cohen and perhaps Stormy Daniels as well, both of whom have commented publicly on the case. Cohen’s comments have been particularly aggressive, designed to poke the tiger. They will undoubtedly lead to vicious cross-examination, something no prosecutor wants to risk, but Cohen has inexplicably continued with personal attacks like this one (which I will not repeat), which remain on his feed as of this writing. I have been wondering whether the Judge might not expand the gag order, which currently applies only to Trump, to offending witnesses as well. But he took a different approach, writing that Trump’s First Amendment right to engage in political speech deserves protection and that he will not permit the gag order to be used as “a sword instead of a shield by potential witnesses.” Trump isn’t the only one the order puts on notice about further misbehavior.

After finding Trump in contempt, the Judge took up the issue of permissible penalties, noting, as we previously have here, that the relevant law, Judiciary Law § 751A, gives him the option of imposing a fine of up to $1000 and/or up to 30 days in custody. The Judge wrote that the purpose of the proceeding was to “protect the dignity of the judicial system and to compel respect for its mandates.” Then, he took on the real issue hanging over the contempt proceedings, acknowledging that the law makes no allowance for a case where the fine is clearly inadequate, stating that “the Judiciary Law does not vest the Court with authority to craft an appropriate punishment when a $1,000 fine will not achieve the intended purpose … Because this Court is not cloaked with [discretion to impose a higher fine], it must therefore consider whether in some instances, jail may be a necessary punishment.”

My sense is that as long as Trump avoids further violations, the Judge won’t make that decision on Thursday. But it’s clear he’s serious if there’s an additional violation, stating that “Defendant is hereby warned that the Court will not tolerate continued violations of its lawful orders and that if necessary and appropriate under the circumstances, it will impose an incarceratory punishment.” Trump would do well not to test the Judge any further. He has given him all of the due process he is conceivably required to—if Trump willfully violates the gag again, he will leave the Judge with no choice. Trump has until Friday to pay the fine and has already removed the offending posts, which the Judge ordered him to do.

Trump is now formally a “contemnor,” the label assigned by the New York courts to a person who has been held in contempt. The Judge cited case law that references the court’s ability "to punish the contemnor for disobeying a court order." Put that one on a T-shirt!

There has been a suggestion that Trump is in violation of the terms of his pre-trial release in this and other cases, which require that he not commit any new crimes. I’ve looked into that, and my tentative conclusion is that these charges don’t technically qualify as “crimes.” Prosecutors asked the Judge to issue a show cause order pursuant to Judiciary Law § 751A, a series of laws that define the powers of courts in New York. The contempt provision found here permits a Judge to make a finding of contempt, as we discussed above, to protect the integrity of court proceedings. It is not a charge brought via a grand jury and tried in court. That sort of contempt is found in New York’s criminal code, which provides for felony charges, but it was not used here—that would have been a long, drawn-out process. So this contempt finding is not a clear violation of law that would suffice to revoke Trump’s bond in this or other cases where he is on pre-trial release.

Will Trump be able to avoid future violations? I would never bet on anything that requires him to use good judgment and restraint, a sad commentary on the man who wants to be president again.

We’re in this together,

Joyce