It took only a few hours for Donald Trump to inch toward a showdown against the judge overseeing his criminal case.
The cause is an easily predicted variable in this case: the defendant’s mouth.
The former U.S. president trashed the judge, and the district attorney, in a speech on the day of his arrest, not long after he received a warning in court about attacking it.
At least three separate penalties could be, or will be, in play should this celebrity defendant publicly attack the court during his case. One is a gag order, which the judge has not imposed, but said he could reconsider. Another is a certainty: a prohibition on discussing court evidence, under terms the parties are still working out.
Violating either of those could produce a contempt of court finding, which in the rarest and most severe cases can be punished by a short jail stay.
Then there’s a third, more serious penalty in this genre: a misdemeanour charge of obstructing government administration, by using intimidation or force to impede a public proceeding.
A former New York City prosecutor who once worked on the Trump case said the former president should avoid compounding his legal woes with such a charge.
“The president is drawing very close to the line,” Cyrus Vance told CNN after hearing Trump’s speech.
“If I were his lawyers, I would tell him, ‘Knock it off.’ … What he is saying is very, very ill-advised, and repugnant, and wrong. … It’s also legally risky.”
WATCH | Trump trash-talks DA in speech:
What Trump actually said, in a prime-time speech from Mar-a-Lago on Tuesday night, was that the prosecutor is a criminal who should go to jail for leaking case details to the media, an allegation Trump made without evidence.
He also called the judge a Trump-hater, in a family of Trump-haters, and he identified the judge’s daughter as having done campaign work for Vice President Kamala Harris.
Members of Trump’s family also circulated pictures of the judge’s daughter on social media. Trump, in his speech, accused the judge of using tactics from the old Soviet Union.
What Trump was told in court
This was a few hours after he was in a courtroom while the lawyers around him engaged in an extended conversation about maintaining some discretion.
Trump was charged Tuesday with 34 counts of falsifying business records to hide payoffs intended to keep voters from learning about his affairs, in a case some observers have called flimsy, and have suggested it’s the least of Trump’s ongoing legal woes.
One reason Trump’s first court appearance lasted longer than expected: the parties discussed the above-mentioned issues at length.
Prosecutors shared printouts of recent Trump comments. Trump had recently warned of death and destruction if he was charged, posted a photo of himself holding a baseball bat beside the prosecutor’s picture, and held his first 2024 campaign rally in Waco, Texas, site of a deadly standoff against government agents.
“We have significant concern about the potential danger this kind of rhetoric poses to our city, to potential jurors and witnesses, and to the judicial process,” said Manhattan prosecution lawyer Chris Conroy.
Trump lawyer Todd Blanche replied that his client was right to respond in frustration to a case he views as a grave injustice.
He noted that the prosecution’s star witness, former Trump fixer Michael Cohen, constantly speaks to media, has written books and hosts a podcast.
The prosecution has not requested a gag order. A member of the prosecution did warn, twice, that if Trump discusses non-public case materials, he could be in contempt.
A request, not an order
The judge, Juan Merchan, made clear he dislikes gag orders on principle. At this point, he said, he would oppose one even if it were requested. He called it a question of protecting First Amendment free-speech rights, especially when the defendant is running for president.
But then he issued a warning.
The judge said the parties had better refrain from making comments that incite violence, or unrest, or jeopardize the rule of law, the case, or anyone’s safety.
If they don’t refrain, Merchan warned, he could reconsider.
WATCH | Trump pleads not guilty:
“This is a request I’m making. I’m not making it an order,” Merchan said.
“But now that I have made the request, if I were to be handed something like this again in the future, I have to take a closer look at it.”
In Vance’s view, Trump’s strategy is political.
As the case drags into next year, and if he becomes the Republican presidential nominee, Vance told CNN he suspects Trump is betting the court will get cold feet about convicting a candidate.
Trump may be baiting judge,analyst says
Several legal analysts said it’s clear the judge wants to avoid a speech clampdown.
Such an order would draw political blowback. Even Tuesday’s mild admonition had Trump allies fuming, like congressman Jim Jordan who called Merchan’s words chilling and alarming.
“The judge obviously doesn’t want to go to those extremes,” Bennett Gershman, former New York prosecutor and current law professor at Pace University in New York City, told CBC News.
“But Trump is asking for it. … I think Trump’s remarks crossed the line, but the reference to the judge’s daughter was particularly vicious and reprehensible.”
Another law professor said there are strategic reasons for avoiding a gag order — not just First Amendment principles.
The first is that it would further delay the case, said Daniel Medwed, a professor of criminal law and criminal procedure at Northeastern University. Trump would fight the gag order, and push back the case, which already faces delays; the next hearing is in December, in the thick of the presidential primary campaign.
A second reason prosecutors might prefer their defendant talking is that Trump’s own words can be used as evidence, Medwed said. The more he talks in public, the greater the chance that he says something damaging to his case.
“It’s not clear the prosecution wants a gag order,” Medwed said.
He said he suspects Trump is still a couple of steps away from a contempt charge. The first step is saying something that makes the judge reconsider his aversion to a gag order.
He said the former president inched closer to that in his Tuesday night speech.
“It definitely puts him on shaky ground with respect to the judge’s warning,” Medwed said. “[A gag order] would be pretty extraordinary in this case.
“Perhaps Trump is sort of baiting him to do it.”