Trump is tempting a "crackdown" with continued threats against judge's daughter: legal experts

Donald Trump is ramping up his online attacks of the daughter of the judge overseeing his New York hush-money case — and the Manhattan district attorney's office wants the former president held accountable. 

On Saturday, Trump vaulted another social media attack of Judge Juan Merchan's daughter. Trump claims her past work as a political consultant presents a conflict of interest for the judge, sharing a link to a New York Post article about her on Truth Social. “This is a disgrace to our Legal System. Judge Merchan should be immediately sanctioned and recused, and this fake ‘case,’ only kept alive by the Highly Conflicted Judge, should be completely dismissed right away,” Trump wrote in a post that included images of Merchan's daughter, Loren Merchan.

Trump's weekend post of the article, which he reshared on Sunday, marks "an escalation in terms of potential threats" to Loren Merchan, Catherine Ross, a George Washington University constitutional law professor, told Salon. The "rapidity and repetition" of Trump's attacks are also "striking" in revealing "where his focus and his energy" are, especially on Easter Sunday, she noted. 

The former president's weekend social media rant followed a spate of other attacks targeting Loren Merchan, whom Trump assailed on social media at least three other times throughout the week.

Just hours after one instance last Tuesday, the judge imposed a gag order in response to the Manhattan district attorney's prior request, barring Trump from publicly commenting on or instructing others to publicly comment on witnesses and jurors, while prohibiting statements meant to harass court staff, the prosecution team and their families. Legal experts noted, however, that last week's gag order did not insulate Judge Merchan or his family, nor did it protect District Attorney Alvin Bragg. 

To an extent, Trump's repeated comments about the judge and his family could be construed, as Trump argues, as "protected" First Amendment speech, David Schultz, a Hamline University legal studies and political science professor, told Salon. But his remarks "may be starting to get closer to trying to intimidate the court," Schultz said, emphasizing that "no party in court" has "any right" to "obstruct or or intimidate" a proceeding. 

In a Thursday letter, Bragg's office asked the judge to "clarify or confirm" the gag order's scope and direct the presumptive Republican nominee to “immediately desist from attacks on family members," suggesting that Trump may have violated the order by deriding Loren Merchan and pushing a false claim about her, according to HuffPost. 

The letter argued that the gag order's ban on making harassing or interfering statements about the court's staff or their families protects the judge's daughter from Trump's invective. The former president should be punished for further violations, prosecutors added. 

Trump's lawyers countered that the DA's office is misinterpreting the order and requesting its expansion instead, arguing that it does not bar the former president from making comments about Loren Merchan, a political consultant whose Democratic campaign consultancy firm worked on campaigns for President Joe Biden and other top Democrats. 

Though how Judge Merchan will react to Trump's attacks of his daughter is unclear, Schultz speculated that the judge could "warily" conclude that Trump is attempting to intimidate him through his online remarks. 

"If the court reaches that conclusion that this has crossed the line from protected free speech over to the line of some kind of either true threats or real effort to try to bully or intimidate the court, I can see the judge changing — at this point — the order and saying, at the very least, 'You can't go after my daughter, who's not at all a party to this whatsoever,'" Schultz explained.

Merchan's next step, Schultz predicted, would be to "clarify" what the gag order covers and what its "bounds are," further establishing "who can be a target," what the parties can and can not say, and "how far Trump can go." From there, Merchan will see "what Trump does next."

Violating a gag order could result in Trump being held in contempt of court, fined or — on the extreme end — even jailed, HuffPost notes. Trump was subject to a $15,000 fine in his civil fraud trial last fall after twice violating the gag order the judge imposed prohibiting Trump from speaking about court staff. 

If Trump's attacks on Merchan's daughter persist, Schultz predicted, the court, which he believes has given Trump an "incredible amount of slack" thus far, will "crackdown" should Trump violate any additional gag order.

The Manhattan DA's Thursday letter is "helpful" because it offers Judge Merchan "a pathway to rely on the district attorney's request and arguments" in favor of expanding the gag order and determine it's "necessary for the administration of justice" rather than taking full responsibility for it should he choose to do so, Ross added.

She also reiterated the hope she previously told Salon she has that the judge will "impose conditions" on Trump's release for a set period with any violations yielding penalties up to confinement, and "be prepared to enforce his orders."

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"That's because I believe that everyone should be equal in front of the law, and there is no question that any other criminal defendant would have suffered serious repercussions by now for the same behavior," she said Monday, adding that it's "extremely troubling" that Trump is being treated differently. 

She conceded that Merchan may be "reluctant" to act harshly against Trump because the former president is likely trying to "create grounds for a mistrial," an interlocutory appeal and pursue additional avenues to further postpone his trial start date, which is slated for April 15. 

The former president may be attempting "to cow the judge so that he is bending over backwards to show how fair he is to Trump in ruling on motions and objections during the trial," Ross explained, adding that "no judge wants to be the first one to revoke the former president's bail, or to impose much more draconian conditions like house arrest, or a bracelet."

But what penalties or punishments will work to corral Trump's comments is the "half-billion dollar question," Ross said.

Trump is trying to create the "impression" that the judge is biased against him "because he is not litigating in the courtroom," Ross said. "He's litigating in public opinion and trying to undermine the perception that the legal system will be fair to him. That is his whole strategy: to rile up his supporters, [claim] that he's a victim [and] there's no justice for him. And the more he can muddy the waters and dominate the headlines, he thinks he's better off."