"Ridiculous": Experts say Trump's court defiance threatens to "backfire" at looming contempt hearing

Experts expect Judge Merchan will want to "nip this conduct in the bud" before witnesses appear at trial

By Tatyana Tandanpolie

Staff Writer

Published April 20, 2024 6:00AM (EDT)

Former US President Donald Trump sits in a Manhattan Criminal Court for his trial for allegedly covering up hush money payments on April 19, 2024 in New York City. (Curtis Means - Pool/Getty Images)
Former US President Donald Trump sits in a Manhattan Criminal Court for his trial for allegedly covering up hush money payments on April 19, 2024 in New York City. (Curtis Means - Pool/Getty Images)

Donald Trump violated his expanded gag order seven more times since Monday, prosecutors told the judge presiding over the former president's hush money trial in New York, according to court pool reports.  

The prosecutors' accusations came in a new motion asking for the court to include the Trump social media and campaign website posts in question in next week's hearing on alleged gag order violations.

Judge Juan Merchan earlier this week scheduled the hearing for next Tuesday in response to prosecutors' Monday request that Trump be held in contempt of court for three earlier posts criticizing potential witnesses Michael Cohen and Stormy Daniels, the adult film actress whose silence about an alleged sex scandal Trump is accused of buying ahead of the 2016 election.

“It’s ridiculous. It has to stop,” Christopher Conroy, a prosecutor in the Manhattan district attorney’s office, said Thursday, according to The New York Times.

"I think it’s fair to say that Trump is determined to continue to leverage the legal proceedings against him to maintain his public persona and rally his supporters, and his modus operandi has always been to attack," Jennifer Laurin, a University of Texas School of Law professor, told Salon.

The most recent instances of Trump's online statements seem "to be testing the outer limits of Judge Merchan's order" in that they're reposts of others' content, she added.

Merchan last month imposed a gag order on Trump that barred him from making public statements about witnesses, prosecutors, court staff and jurors as well as their families. He expanded the order earlier this month to cover his and Manhattan District Attorney Alvin Bragg's family members after Trump vaulted a series of social media attacks on the judge's daughter. 

In their Monday motion, prosecutors asked the judge to fine Trump $1,000 for each alleged violation — totaling $3,000 for the three prior posts — and to order the former president to delete the posts and warn him that "further violations could result in jail time," according to online legal analysis forum Just Security. New York law authorizes up to 30 days in jail for contempt. 

On Thursday, Manhattan prosecutors outlined Trump's potential latest violations: Seven posts linking to articles calling Cohen, a "serial perjurer" and quoting Fox News host Jesse Watters' allegation that "undercover liberal activists" are deceiving the court in order to be seated on the jury, a pool report noted, per Axios

"Defendant is indisputably aware of the April 1 order and has recent experience in New York courts regarding the scope of orders restricting his extrajudicial statements," Conroy wrote in the filing, adding: "Defendant's decision to specifically target individuals whom this Court's order protects is a deliberate flouting of this Court's directives that warrants sanctions under Judiciary Law § 751."

NYU law professor Ryan Goodman took note of the timestamps of Trump's alleged violations that the district attorney's office flagged. Three of the former president's posts were made on Monday, the first day of trial, at 9:12 a.m. and 10:26 a.m. Eastern and on Tuesday at 1:50 p.m. Eastern, according to the filing's exhibits. 

"To make these statements or have these statements made from within the courthouse would be to amplify the 'contempt' of and for the court," Goodman wrote Thursday on X, formerly Twitter.

"New York law also gives special powers to a judge in enforcing their orders (e.g., gag order) if the violation occurs in the 'immediate view and presence of the court,' he added. "I don't think these alleged violations do so, but the fact that they might come close is significant." 

Pace University law professor and former New York prosecutor Bennett Gershman agreed, telling Salon that Trump is "playing games with the court, the prosecutors and the legal system" by violating his gag order "with impunity."

"The prosecutors called Trump’s attacks 'ridiculous.' But it is Trump and his army of followers, including his media toadies, who love him for the way he is 'ridiculing' the legal system," Gershman said.

"Trump is literally, not just legally, showing contempt for the court, the trial, and the law," he continued, arguing that a $3,000 fine as a penalty is "laughable" because, to Trump, "his relentless attacks are well worth it."

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One of the former president's lawyers, Emil Bove, argued that Trump's online posts didn't "establish any willful violations" of the gag order and argued that reposting other people's public comments shouldn't amount to a violation, Axios notes. Bove argued instead that Trump's posts underscored some of the "ambiguities" in the gag order. 

But Loyola Law School professor Laurie Levenson told Salon she believes the court "anticipated," to an extent, how Trump may attempt to get around the order. If Trump had posted someone else's statement with a comment of his own challenging it as "wrong," it "might be" perceived by the court differently, but "that's not what he's doing."

"He can think he's clever in using someone else's statements, but he's essentially adopting those and promoting them," she said.

The question for the court at Tuesday's hearing "will be whether Trump’s repost is Trump’s own 'statement' about the witnesses discussed in the content of the post and whether it was sufficiently clear that the repost qualified as a statement to merit a finding of contempt,'" Laurin added, noting that the law of contempt requires an order "be clear and explicit" in order for a violation of it to be a basis for a contempt finding. 

Merchan did not rule Thursday on whether to include the new possible violations, instead indicating he will wait until after the hearing to decide, the Times reported.

Still, the fact that Merchan set the hearing on the alleged violations means "the court really is taking it seriously," Levenson said, explaining that a hearing allows the judge to have a "complete" record should the defendants seek appellate review of his rulings after trial. 

Tuesday's hearing, Laurin said, will be an "adversarial proceeding" with prosecutors presenting evidence of Trump's statements and argument about why they constitute gag order violations, and Trump's lawyers opposing the contempt finding. She expects Trump's lawyers to argue both that the former president's statements didn't "violate the express terms of the order" and are protected by the First Amendment. The latter point, she notes, Merchan has already established is not the case. 

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"It is less clear whether Judge Merchan will opt to find Trump in contempt, or instead give him 'one more chance,' as it were, by clarifying that reposted content on social media is a 'statement' within the meaning of the order," she said. 

Levenson and Gershman argued, however, that Merchan finding Trump in violation of the gag order and held in contempt is "likely."

"If this was just a one off, then I think it would be much less likely that the court would find a violation. But, I mean for repeated incidents, the odds just are at least one of these the court will find in violation of the gag order, and repeated conduct itself seems more aggravating," Levenson said. "So the real question is what is the court do about it?"

Finding a penalty that would incentivize Trump to change his behavior would be "hard," she said, arguing that the former president wouldn't take a $1,000 fine "particularly seriously."

Gershman predicted Trump will be made to pay the "paltry fine" the judge is likely to impose and then "continue to revile the system and revel in his notoriety."

Whatever Merchan may decide, Levenson said she expects the judge will want to "nip this conduct in the bud" before witnesses appear at trial.

"The problem for Trump is that he's built himself a reputation as a rule breaker," Levenson said, adding: "He hasn't acted in deference to the court. He's basically always been in the attack route, and you can do that until there's a court order, and then it's going to backfire on you."

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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