Donald Trump continues to attack judges, prosecutors and court officers running his criminal and fraud trials on social media, despite now being under multiple gag orders, and as I have been saying for a while now, he's doing it on purpose in order to dare someone to put him in jail.
Trump continued to complain online after arriving in court on Wednesday.
"Just arrived at the Witch Hunt Trial taking place in the very badly failing (so sadly!) State of New York, where people and companies are fleeing by the thousands," he wrote. "Corrupt Attorney General, Letitia James, is a big reason for this. Statute 63(12) is meant to be used for Consumer Fraud. It has never been used before on a 'case' such as this, especially since I did absolutely nothing wrong. I borrowed money, paid it back, in full, and got sued, years later, with a trial RIGHT IN THE MIDDLE OF MY CAMPAIGN. I am not even entitled, under any circumstances, to a JURY. This Witch Hunt cannot be allowed to continue. It is Election Interference and the start of Communism right here in America!"
"Despite the gag order — which again, is limited only to the judge's staff — Trump is back on Truth Social this morning with a post taking aim at New York Attorney General Tish James and filled with words from a Trump legal bingo card," tweeted MSNBC legal analyst Lisa Rubin.
Attorney Bradley Moss argued that the post itself "does not cross the line," opining that "this post was reviewed by the lawyers" before it was sent.
While the Truth Social posts may not have violated the judge's order, some legal experts predicted that he would "almost certainly" violate it.
"If we're gonna ask, is Trump gonna violate a gag order? Almost certainly, yes," former acting Solicitor General Neal Katyal told MSNBC. "It's more likely that he'll violate the gag order than almost anything... I mean, we're talking a significant probability he's going to violate the gag order, and then the question is: Will the judge at that point take the really heavy medicine of putting a former president in jail, or will there be some sort of warning and monetary fine first?" he said, adding he expects the latter but the outcome would depend on exactly how Trump violates the order.
"It's kind of like failing kindergarten," Katyal added. "To get a gag order imposed, you have to try. Trump managed to work at it and do it. And succeed. But it took a lot of work on his part. Now, I think the judge is basically saying, you attack a member of my staff, there will be serious sanctions, including even up to jail."
CNN legal analyst and former federal prosecutor Elliot Williams suggested during Wednesday's edition of "CNN This Morning" that a prison stint is the only way to get the former president to comply with the gag order.
"In order to have a serious sanction against a defendant who's a billionaire, you really have to be sanctioning him hundreds of thousands of dollars, if not millions of dollars to really sort of stick it to him," Williams said. "And that's just not going to happen under the laws of New York court policy or procedure.
"You could put him in prison," he continued, addressing host Poppy Harlow. "You could do that. It's less likely but it's certainly doable and, frankly, Poppy, that's the one thing I think will work at this point because — just think about it — nothing has worked whether it is warnings, threats of gag orders or anything else. You've got one penalty left, right?"
Luckily, Judge Engoron still has other options other than trying to jail Trump.
Trial attorney Bernard Alexander, who specialized in employment law and civil rights cases, told Insider, however, that Trump is unlikely to incur those kinds of penalties even if Engoron finds he's failed to comply with the gag order. Any decision the court makes, Alexander said, will have to strike a balance between maintaining the former president's right to free speech and the legal objective of holding a fair trial.
"For one thing, the judge can prevent Trump's legal team from presenting certain evidence. But judges prefer not to put their thumb on the scales of justice that way," Alexander told the outlet, adding that if Trump's trial had a jury, the judge could instruct the jury to consider the violation in their decision.
Alexander went on to say that the court could also impose a fine against Trump, "but that would be meaningless," and noted that judges in civil cases usually don't order people to go to jail, so Engoron will have to be creative in the sanction he chooses to issue to dissuade Trump from theoretically continuing to violate the order.
"Trump has money and he uses it to bully people. He can keep paying fines amounting to thousands of dollars – which is what would have to be imposed in a case like this – without giving it a second thought," Alexander told Insider. "The sanction must be something effective to reign Trump in, in order for him to take it seriously."
Alexander expressed that he was not surprised the order was issued and deemed it the correct course of action for Engoron.
"The judge is trying to maintain the integrity of the court and proceed with as light a touch as possible to allow the case to progress without any hint that the court is being impartial. The more Trump violates the rules, the more the judge has to act to maintain integrity and control," he said.
Trump is trying to get into as much trouble as possible in order to raise MAGA outrage and to sink the entire legal process. Trump is already appealing the fraud liability finding by Judge Engoron even as the trial continues. It's a mess but a calculated one.
Trump is trying to break the system to the point where it can't be used to punish him. We keep saying that Trump is not above the law, but he's also an unprecedented bad actor with considerable power to harm the country. Keep that in mind.
And no, he's not going to get locked up for violating gag orders as Liz Dye explains.
Shorn of all of the BS, Trump’s argument against a gag order boils down to “I’m running for president, and telling me to keep quiet is going to be a massive interference in the political process.” There’s also an unspoken element of “You and what army?”
The reality is that, absent a conviction, no judge is going to lock up the former president, who is running to return to office and who has a secret service detail and millions of angry followers. In some sense, every party to this transaction already knows that the court simply cannot treat Trump like any other defendant. And so they’re trying to fashion a solution which will nudge the former president to behave slightly better, knowing that a severe restriction is likely to provoke a showdown which will gum up the works for everyone.
In practical effect, this boils down to putting the squeeze on Trump’s lawyers and hoping that they’ll do their best to keep their client in line.
In an earlier round of motions, prosecutors argued for a protective order blocking Trump from disclosing any evidence turned over in discovery. Trump’s lawyers howled that this was a violation of their client’s First Amendment rights, just as they’re doing now. Judge Chutkan wound up imposing a narrower order blocking the disclosure of “sensitive information” such as grand jury transcripts, witness interviews, and personally identifying information. In practical effect, she ordered Trump not to post witness information on Truth Social.
But more than that, she imposed an obligation on Trump’s lawyers to safeguard that information by refusing to let Trump keep copies or take notes on it. And she put the kibosh on Trump’s plans to share that information with “volunteer attorneys or others without paid employment arrangements to assist with the preparation of this case” — a category of people which might include unindicted co-conspirators like Rudy Giuliani, Sidney Powell, and Trump’s fixer Boris Epshteyn. By placing the onus on Trump’s counsel to control the flow of sensitive information, Judge Chutkan has so far managed to keep Trump from posting it online. Because while no judge wants the chaos that will come from sanctioning Donald Trump for his speech, they’ll happily sanction his lawyers in a heartbeat.
Trump’s desire to postpone his trial provides another lever Judge Chutkan can use to keep him in line. At an August hearing on the parameters of the first protective order, she tacitly warned Trump that the more he potentially poisoned the jury pool, the less inclined she would be to delay the trial.
“Even arguably ambiguous statements from parties or their counsel, if they can be reasonably interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process,” she said. “The more a party makes inflammatory statements about this case which could taint the jury pool … the greater the urgency will be that we proceed to trial quickly.”
Judge Chutkan has scheduled an October 16 hearing on the motion for a gag order. This would not appear to indicate that she views the matter of Trump’s social media posts as particularly urgent. In the meantime, the former president has directed most of his ranting toward Justice Engoron as the New York trial unfolds this week. Perhaps the sheer volume of Trump’s legal woes will keep him out of trouble with judges, if only because every time he gets tempted to do something deeply damaging in one case, he’ll be distracted by proceedings in another.
Having said all that, Trump's going to continue to Trump. Whether or not real pain can even be applied to him, well, we'll see.
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