Experts claim it appears inevitable that Donald Trump will be held in contempt of court in his New York criminal trial, and they examined the evidence against him and weighed the potential outcomes Monday.
The former president is accused of running afoul of Justice Juan Merchan's gag order in the case by commenting publicly on witnesses and other trial participants. A hearing into the potential violations is scheduled for Tuesday.
Legal experts Norm Eisen, Karen Agnifilo, Andrew Warren, Jacob Kovacs-Goodman and Siven Watt published a lengthy column for Just Security studying the court's options.
"Trump was and is fully aware of the gag order’s prohibitory parameters," the experts wrote. "It is hard to understand how his persistent and repeated statements, even after the first order to show cause was served on April 15, does not demonstrate full knowledge that his statements were in violation of the court’s limits. [The district attorney] will argue the language was unequivocal and that Trump was aware of the parameters."
The day after Merchan issued his order, Trump commented about it and complained that witnesses could "talk about me, but I can't talk about them." The experts laid out 10 social media posts the ex-president made about the case and its participants that they presented as evidence that he violated the order.
"We believe that DANY will prove beyond a reasonable doubt that Trump willfully violated the gag order," the experts wrote. "The first three posts are clear violations. Trump’s potential defense for posts 4-10 in which he shared others’ comments will likely fail.
"We think that item number 10 is particularly egregious because it targets jurors and because Trump applied a high degree of editorial judgment in picking out exactly this statement. 'This is the most disturbing post in light of what happened this morning,' the prosecutor’s told Merchan, in reference to a juror asking to be released out of concern for her safety and that she could be targeted."
The judge would have a solid basis for sanctioning the former president for all of his statements, although the experts expect he might let some reposting of others' statements slide as a compromise.
But they expect some penalties to be imposed.
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"We expect the court to impose fines against Trump for a substantial number of the violations and to warn him that future violations will result in additional fines and potentially jail time," the experts wrote.
"The most difficult question to answer, however, is whether any finding of contempt and resulting punishment will deter this particular defendant from future violations. Prior history suggests it may. As noted above, as the fines increased together with the risk of incarceration in the civil fraud matter, Trump finally stopped. On the other hand, he may view a short confinement as politically beneficial."
"The amounts of the fines here at issue will not give him pause if he is determined to continue his extrajudicial statements," the legal experts concluded. "In the interest of protecting the administration of justice, we must hope for a firm response by the judge on Tuesday morning, and then wait to see what follows from the former president."
