If Trump dares Judge Merchan to put him in jail, the judge should happily oblige him

To know Donald Trump is to understand how tightly he controls his image and narrative in public. He means to show us: Strength. Control. Power.

On Wednesday in Trump’s New York trial, Judge Juan Merchan made it clear who’s really in charge. He held Trump in criminal contempt for nine violations of a narrowly tailored gag order designed to ensure the integrity of this, the former president’s first criminal trial. That gag order prohibits Trump from “making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding,” as well as “public statements about any prospective juror or any juror.”

In addition to fining Trump $1,000 per violation, the maximum penalty allowed, he warned Trump that “incarceratory punishment” remains an option if he continues to violate the limited order by further attacking those covered by it, including witnesses and jurors.

Merchan also ordered Trump to take down seven posts that violated his gag order from his Truth Social account and two other posts that violated the order from his campaign website by 2:15 p.m. Tuesday. The posts were removed as ordered. On Thursday morning, the judge will hold another contempt hearing for additional alleged violations of the original order.

In many respects, Wednesday’s order wasn’t a surprise — attorneys and legal scholars across the ideological spectrum, a former Trump lawyer included, expected Merchan to find Trump in direct violation of the order. In some ways the moment felt like the review of a play in a football game when you know what the call is going to be but you have to wait for the referee to watch the replay.

Now that we know the call and the penalty, the question is: What happens the next time? What should the judge do if Trump continues to be Trump and in his attempts to sway public opinion violates his gag order again?

There’s been a lot of conjecture about this, but there shouldn’t be. If Donald Trump continues to show contempt for the judge’s order and say what the judge tells him that he can’t say, then he needs to face the consequences just like you or I would if we were criminal defendants. Judge Merchan should order Trump’s detention as he would order the detention of anyone else who repeatedly violated what Merchan called his “lawful and unambiguous” order.

Sure, the judge’s putting Trump in jail would be likely to further galvanize his base in the short term. It would also be likely to galvanize Democrats, many of whom may believe that Trump should already be incarcerated for his efforts to subvert American democracy.

Play

‘Wants to be put in jail’: Trump fined $9,000 for gag order violations April 30, 2024 / 06:44

But Judge Merchan must not be motivated by any of these political considerations or driven by the plausible claim that he is being baited by Trump, who recently posted that if Merchan jailed him for violating the gag order, he would be a “Modern Day Nelson Mandela.” Prosecutor Chris Conroy said during an April 23 hearing that Trump “seems to be angling” to be locked up so he could capitalize on it politically.

Merchan’s sole job is to administer justice fairly without fear or favor. Incarceration — perhaps one night in jail for each new violation — should be a last resort, but it must remain on the table.

The judge acknowledged that fining Trump a total of $9,000 may not have a much of a deterrent effect, given the defendant’s great wealth, and he said he would prefer increasingly larger fines to locking the former president up. But he said he must consider “whether in some instances, jail may be a necessary punishment.”

When Judge Merchan considers the handful of additional alleged violations on Thursday, he should reiterate this consequence and that Trump, and Trump alone, is responsible for whether or not he spends time in jail for blatant and repeated violations of court rules.

Perhaps this is an academic discussion, as there are signs that the Trump team and allies are broadening their approach and that surrogates are picking up the mantle on his many false claims. Even still, Trump would be well-advised to steer clear of engaging these potential running mates and Cabinet officials: Judge Merchan’s order enjoins Trump from “making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.” (Emphasis mine.)

Whatever happens with Trump and his surrogates, one thing is clear: Our judicial system is undergoing a stress test. To pass it, Judge Merchan must treat Trump like every other criminal defendant. Doing so would reaffirm our nation’s highest ideals — that we are a nation of laws and no one, not even a former president, is above them.