Donald Trump has made his contempt for the court clear throughout his criminal trial in Manhattan, and now a judge has made it official. Juan Merchan ruled today that the former president had violated a gag order designed to protect the integrity of the trial and fined him $9,000.
The order is a window into Merchan’s approach to controlling the unruly defendant, who is on trial in his courtroom for falsifying business records. Merchan found that nine violations alleged by prosecutors were clear violations, but deemed a tenth too ambiguous to warrant punishment. He declined to levy the most serious punishment available to him—namely, tossing Trump in jail—but also had scathing words for Trump’s excuses for violating the order. Merchan used his ruling to defend his gag order as narrow and careful, but also warned that potential witnesses (looking at you, Michael Cohen) should not use the order “as a sword instead of a shield.”
Merchan is the third judge in recent months to reckon with the challenge of Trump, a defendant who not only is furious that he’s being called to account for his actions and is openly disdainful of the rule of law, but also sees political advantage in attempting to provoke sanctions on himself. Give Trump too much latitude and he undermines the standing of the criminal-justice system; act too forcefully and it could reward his worst behavior.
[Read: Is Trump daring a judge to jail him?]
Lewis Kaplan, the federal judge who handled civil suits brought by E. Jean Carroll, scolded Trump for his behavior from the bench but went no further. Justice Arthur Engoron, who oversaw a civil fraud case, repeatedly fined Trump and chided him, but also allowed him to hector the court in closing arguments. Merchan, like them, seems to be trying to control Trump without being drawn into hand-to-hand combat.
Trump has tested the bounds of Merchan’s gag order from the start. Ahead of the hearing last Wednesday to discuss the alleged violations, Trump sent histrionic emails to supporters. “ALL HELL BREAKS LOOSE IN 24 HOURS!” he wrote. “Friend, in 24 hours, the hearing on my GAG ORDER will begin. I COULD BE THROWN IN JAIL AT THAT VERY MOMENT!” In another, he wrote, “MY FAREWELL MESSAGE—I HOPE THIS ISN’T GOODBYE!” During the hearing, prosecutors specifically said they were not seeking jail time at this point and accused Trump of “angling” for it.
Merchan today lamented that the law permits him to fine a defendant only $1,000 per violation, which, he wrote, “unfortunately will not achieve the desired result in those instances where the contemnor can easily afford such a fine.” He also warned that if Trump continued to violate the order, the court “will impose an incarceratory punishment.”
[David A. Graham: ‘Control your client’]
Perhaps more interesting than the money is Merchan’s analysis. Trump’s lawyers raised a couple of defenses during last week’s contempt hearing. First, they argued that several of the instances cited by prosecutors were simply reposts of other content on Truth Social. Second, they argued that Trump had to be allowed some leeway to engage in political speech.
Merchan made clear at the time that he had little patience for these claims. When the defense attorney Todd Blanche said that Trump had a right to complain about “two systems of justice,” Merchan sharply objected: “There’s two systems of justice in this courtroom? That’s what you’re saying?” At another moment, he warned Blanche, “You’re losing all credibility with the court.”
With some room to elaborate in his ruling, Merchan found that contra the old Twitter saw, retweets do equal endorsements. “This Court finds that a repost, whether with or without commentary by the Defendant, is in fact a statement of the Defendant,” he wrote. Although he allowed that reposts might not always be deemed a statement of the poster, Merchan added, “It is counterintuitive and indeed absurd, to read the Expanded Order to not proscribe statements that Defendant intentionally selected and published to maximize exposure.”
[David A. Graham: The cases against Trump: A guide]
As for the argument that Trump should be permitted political statements, Merchan wrote that “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.” But he defended his gag order as carefully written to deal with competing interests and took an opportunity to rebut charges of political bias against himself. He had “narrowly tailored” the order because “it is critically important that Defendant’s legitimate free speech rights not be curtailed,” he wrote, “and that he be able to respond and defend himself against political attacks.”
Trump has complained that Cohen, his former fixer and the expected star witness in this trial, can attack him without consequence. Merchan appears to be sympathetic to that complaint, saying that the goal is to protect witnesses from attacks but not to enable them.
Already, a second hearing on further allegations of contempt is scheduled for tomorrow in court. And as the judge noted, the paltry fines involved here are unlikely to deter Trump. Merchan clearly wants to avoid a long and intense fight with Trump, but the former president may give him no choice.
