“He doesn't play games": Experts say judge may "come down strongly" on Trump for gag order violation

Law professor expects Trump to attack "up until the point where there's a more serious repercussion"

By Marina Villeneuve

Staff Reporter

Published May 2, 2024 4:07PM (EDT)

Former U.S. President Donald Trump attends his trial for allegedly covering up hush money payments at Manhattan Criminal Court on May 2, 2024 in New York City. (Mark Peterson-Pool/Getty Images)
Former U.S. President Donald Trump attends his trial for allegedly covering up hush money payments at Manhattan Criminal Court on May 2, 2024 in New York City. (Mark Peterson-Pool/Getty Images)

New York prosecutors said Thursday they are not seeking jail time “yet” for Trump’s repeated violations of his gag order in his hush money trial – but that doesn’t bar the judge from taking that step anyways.

“The fact that the prosecution doesn't point to jail time doesn't really matter to the judge,” Bennett Gershman, former New York prosecutor and law professor at Pace University, told Salon.

“This judge, he doesn't play games,” Gershman said. “And if he sees that individuals are playing games with him, he's going to come down strongly on them.”

Judge Juan Merchan fined Trump $9,000 on Tuesday for nine violations of his gag order and ordered him to take down social media posts about jurors and witnesses.

On Thursday, prosecutors argued for Trump to be hit with four more sanctions for violating the gag order. 

The alleged violations stem from his comments made to reporters outside the courtroom and in other interviews and news conferences.

According to The New York Times, prosecutor Christopher Conroy told the judge Thursday that Trump’s “statements are corrosive to this proceeding and the fair administration of justice.”

Those statements, according to The Times, include:

  • Trump saying the jury was “mostly all Democrat” in a telephone interview with a right-wing media outlet. He also said: "It's a very unfair situation."
  • Trump calling former National Enquirer public David Pecker ”very nice” at a news conference
  • Trump calling his former counsel Michael Cohen a “convicted liar” who has “no credibility whatsoever” in a television interview.
  • Trump speaking outside a courtroom to reporters and calling Cohen a liar on April 22 – the same day testimony began. 

Trump’s legal team again argued that Trump was merely responding to political attacks. Trump’s gag order does say it “in no way prevents Defendant from responding to alleged political attacks.”

According to The Times, Trump lawyer Todd Blanche pointed to Cohen’s litany of TikTok videos criticizing Trump. “This is not a man that needs protection from the gag order," he said.

Reporters said the judge appeared to nod at some of Blanche’s arguments – with an exception for Trump’s comments about the jury.

Merchan did not rule on the four additional contempt allegations Thursday, but could do so in coming days.

“If a judge threatens you with contempt and threatens to throw you in jail, that's usually going to do the trick,” Gershman said.

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Trump has faced numerous gag orders in criminal and civil cases over the past year – last fall, a judge fined him at least $15,000 for violating a gag order in his New York civil fraud trial for comments that included remarks about a judge’s law clerk. Trump’s team sued and called the gag order an abuse of power infringing on constitutional rights, according to The Associated Press.

Whether the judge would put Trump behind bars at any length of time for repeated violations of the gag order is unclear. Some legal experts say the move could upend the trial, feed into Trump's witch hunt narrative or lead to a more lengthy legal fight.

Peter Joy, a law professor and director of the criminal justice clinic at Washington University School of Law, said there’s a “lot of precedent” about a judge’s authority to find people in contempt and place them in jail. 

“I have no doubt in my mind, that he's going to continue to violate the order that he has up until the point where there's a more serious repercussion,” Joy said.

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Trump’s legal team also sought to discredit the integrity of Stormy Daniels’ lawyer Keith Davidson during a heated exchange Thursday. 

“There's a certain degree of latitude that any lawyer has in terms of trying to discredit a witness or undermine a prosecution's theory,” Joy said.

Trump’s lawyers grilled Davidson about his association with celebrity scandals – including a former client who allegedly leaked that Lindsay Lohan was in rehab.

Davidson for his part said he’s had over 1,500 clients, according to The Times.

Whether Trump’s strategy of grilling Davidson will work remains to be seen - but appears to be within ethical bounds, according to Joy.

“Those kinds of statements seem to me to be ones that Trump's lawyers are using to try to test the government's case, which is something that they're ethically permitted to do,” Joy said. “Is there a point where they might cross align themselves in such an attack? Yes, if they say something with basically reckless regard for what the truth might be. But the statements so far, I think that they've made concerning Daniels’ lawyer probably fall into the realm of: ‘Well, that might be their opinion, even though it's speculative.” So I think they're probably on safe ground.”

Barb McQuade, a former U.S. Attorney and University of Michigan law professor, said prosecutors on Thursday focused on providing the foundation for the admission of text messages proving their case into evidence. 

“The government is telling much of the story through text messages,” she said.

Prosecutors are arguing that a vast trove of text messages and other evidence outline the Trump organization’s scheme.

Trump is charged with 34 felony counts of falsifying business records, with prosecutors saying he was part of a scheme to kill damaging stories ahead of his 2016 campaign. Trump denies those charges. Each count is punishable by up to four years behind bars.

By Marina Villeneuve

Marina Villeneuve is a staff reporter for Salon covering Trump's legal battles and other national news focusing on major legal and political narratives.

MORE FROM Marina Villeneuve

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Donald Trump Juan Merchan Michael Cohen