"Clearly contempt": Expert warns Trump lawyers could face "sanctions" over gag order violations

Judge Merchan gave Trump's attorneys an "implicit warning" over his Truth Social posts, legal ethics expert says

By Tatyana Tandanpolie

Staff Writer

Published April 23, 2024 5:13PM (EDT)

Former President Donald Trump, with attorney Todd Blanche (R), speaks to the press after attending his trial for allegedly covering up hush-money payments linked to extramarital affairs, at Manhattan Criminal Court in New York City on April 23, 2024. (JOHN TAGGART/POOL/AFP via Getty Images)
Former President Donald Trump, with attorney Todd Blanche (R), speaks to the press after attending his trial for allegedly covering up hush-money payments linked to extramarital affairs, at Manhattan Criminal Court in New York City on April 23, 2024. (JOHN TAGGART/POOL/AFP via Getty Images)

Donald Trump's social media posts landed him in hot water in his New York hush-money trial  — and his lawyers' Tuesday arguments explaining his motives for them didn't help.

New York Supreme Court Justice Juan Merchan held a hearing Tuesday morning on whether to hold Trump in contempt of court for violating his gag order in making posts criticizing potential witnesses and commenting on prospective jurors. Prosecutors argued that the former president's online assailing of anticipated witnesses Michael Cohen and adult film actress Stormy Daniels, whose hush-money payment ahead of the 2016 election lies at the center of the Manhattan district attorney's case, are "willful beyond a reasonable doubt" and "pose a very real threat" to the proceedings. 

Among other arguments, defense attorney Todd Blanche countered that such posts were "political," protected speech and Trump's responses to attacks from the witnesses — claims the judge grew more frustrated with as Blanche pushed them.

Merchan repeatedly pressed Blanche to provide specific examples of those alleged attacks from witnesses and admonished the defense's floundering in arguing that reposting others' attacks don't violate the gag order. 

"I hate to keep coming back to this, but you're not offering me anything to support your argument," Merchan said, adding moments later: "You're losing all credibility with the court."

Judging by reports of Merchan's reactions to the defense's arguments, "It really sounds like the judge is keeping Trump's feet to the fire," Loyola Law School professor Laurie Levenson told Salon, noting that she never believed the "just reposting" argument to be a "good one."

"As it turns out, it's not a good argument for a couple of reasons: One, they're not just reposts. [Trump is] actually changing the quotes or adding his own gloss to it, and the second thing is they seem to be directly against what the judge at least intended in his gag order," she added.

Prosecutors on Tuesday zeroed in on a post Trump made last week, attributing a claim that "undercover liberal activists" are "lying" to the judge "to get on the Trump jury" to Fox News host Jesse Watters. While Watters, according to Assistant District Attorney Christopher Conroy, had said on his show that the purported activists had been lying to the judge, Trump's post added that they were doing so to be seated on his jury, NBC News reported

Merchan did not respond well to the revelation. "Your client manipulated what was said and put it in quotes," he told Blanche, who went on to concede that the post wasn't a repost but insisted that it's not clear whether it violated the gag order.

But not only did Trump's apparent manipulation of the post demonstrate an intent to use to for his "own purpose," Levenson said, "it also shows some real hands-on conduct by Trump."

The former president "really wants to use this trial for political purposes and for political gain," added David Schultz, a professor of political science and legal studies at Hamline University. What Tuesday's hearing makes clear is that "Trump is really chafing" as his approach to litigation and campaigning clashes with the expectations of the court, he speculated.

"His history has always been you've got to attack people, you've got to attack opponents and so forth, and, increasingly, what I think he's feeling here is the fact that, in a judicial proceeding, court's don't put up with that kind of stuff," Schultz told Salon, noting the "strain" on the court as it tries to treat Trump like "every other defendant" while offering him "far more slack than probably anybody" in a similar situation.

"Under normal circumstances, you would not see these kind of attacks going on against the court, and you wouldn't see somebody violating when you have" a gag order, he noted.

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Trump's gag order is more narrow in scope than barring him from speaking publicly about any witness or juror for any reason, a nuance Merchan acknowledged Tuesday morning, according to NBC News. Instead, the order prohibits him from making statements about witnesses as far as it pertains to their "potential participation in the investigation or in this criminal proceeding" and about a juror or prospective juror "in this criminal proceeding."

Prosecutors told the judge Tuesday that the former president has continued to violate it as recently as Monday when he called Cohen a liar in remarks at the courthouse. They asked the judge to order Trump to take down the 10 inflammatory posts, sanction him $1,000 per violation and remind him of the possibility of jail time for contempt, of which New York authorizes up to 30 days. 

"We are not yet seeking an incarceratory penalty," but the "defendant seems to be angling for that," Conroy said Tuesday morning, per NBC News.

Merchan did not rule Tuesday morning on whether to hold Trump in contempt of court for the alleged violations or indicate when he may do so.

That decision, Levenson said, is "really smart" because his taking time to rule shows he "wants to be very careful" in his orders and "wants to have a ruling that he knows when reviewed by an appellate court will hold up,"

But given that Trump's behavior is "clearly contempt," Schultz said, the question now becomes what sanctions he may face. Though he doesn't suspect Merchan would jail the former president for contempt, the judge could order Trump to "give up his cell phone" and "stay out of his social media" accounts, while issuing a "pretty hefty fine." 

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Trump's attorneys could also face sanctions over his conduct because it is their responsibility to "manage" their clients and a failure to do so affects their ability to present their case, Schultz, who also specializes in legal ethics, explained. 

Though the judge on Tuesday may be "still hoping" the case can proceed "as normal" and allow the Trump defense team "one more chance" to rein their client in, Schultz speculated that Merchan is also giving the defense an "implicit warning" that they could face sanctions either from his court, a New York disciplinary body or "ultimately" in the form of future discretionary rulings against their interests based on denying them the benefit of the doubt. The latter outcome, he said, could also result from the credibility the judge told Blanche the defense lost.   

"If they can't bring him in line, is the judge going to basically say, 'You're, in effect, encouraging your client to show disrespect to the court and the judicial process, and if so, you're failing to act as an officer of the court and we're going to sanction you?" Schultz said. 

While how exactly the judge will rule is unknown — as its "quite possible" he'll determine some of the posts prosecutors flagged as violating the gag order and others as not — Levenson said his messaging to Trump at the hearing was "pretty clear."

"I think the point of this hearing was [for] the court to convey, 'Stop it. Just stop it," and for the court to reassert control over what's happening in this case," she said.

"It's really about the integrity — and I'll emphasize that," Levenson added. "It's the integrity of the process. This is not an ego trip by the judge. This is a judge working really hard to keep a challenging trial on the tracks."

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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