Jabin Botsford/The Washington Post via AP
Former President Donald Trump, flanked by attorneys Todd Blanche and Emil Bove, appears at Manhattan criminal court during jury selection in New York, April 18, 2024.
The multiple ongoing criminal and civil cases against former President Donald Trump have been a stress test of the fundamental structures and principles of our legal system.
So far, the answer to one basic question—whether the rules apply equally to everyone—seems pretty clear, and discouraging.
The former president and current Republican candidate has demonstrated in each case that he is, as a practical matter, largely immune from much of the supposed authority that our law enforcement and court systems have over him—while thumbing his nose at every official and private citizen involved along the way.
The issue of whether courts should sanction Trump for his behavior as a defendant, for example, has been muddied by a related question about whether he might benefit politically if he faces such consequences. Trump himself has made the comical suggestion that he would be seen as a martyr in the mold of Nelson Mandela were he to be jailed for a gag order violation.
The fact that Trump will be one of this year’s two presidential nominees is too significant of a political reality to ignore, as is the constant, looming threat of real violence from his base. Still, the problem isn’t that prosecutors and judges are in some unsolvable bind; it’s that they’re going so far to appear unbiased that they’re now simply allowing Trump to bend and flout the laws and rules they’re responsible for enforcing.
In fact, the judges overseeing Trump’s cases have more than enough discretion to respond to his violations of court orders and rules (and his apparent violations of witness intimidation laws) short of jailing him, and without providing opportunity for Trump to cast himself as a victim. And it’s high past time, in most if not all cases, for those judges to meaningfully punish Trump’s relentless line-stepping and rule-breaking.
Robert Katzberg, a former federal prosecutor in New York, told me he can’t recall another defendant flaunting this much disrespect toward the court process.
Take the hush money case, for example, which became the first to go to trial this week, and likely the only one that will begin before the November election. Its charges are based on allegations that Trump ordered his lawyer to pay off adult film actress Stormy Daniels to prevent her from publicizing a sexual encounter with Trump, and concealed the transactions via false business records.
In this case, Trump has shown a level of disrespect and disdain for the entire process and the rule of law that’s almost shocking, and mostly without facing consequences from Justice Juan Merchan. The same is true in the three other criminal cases against him, all of which have now been unduly delayed by his team’s deliberate strategy of disruption.
Trump has shown a level of disrespect and disdain for the entire process and the rule of law that’s almost shocking, and mostly without facing consequences.
In the case that went to trial this week, Trump and his lawyers have already been reprimanded and were issued an initial, very limited gag order due to Trump’s behavior in and out of court, and for making frivolous arguments. Before the trial even began, Trump had falsely accused the judge’s daughter of posting a photo depicting him behind bars.
The gag order restricts Trump from continuing to disparage or intimidate witnesses and others in relation to their participation in the case. And it still affords him broad leeway to campaign and make political comments, and to speak freely about witnesses, court staff, and others, contrary to his legal team’s representations. He just can’t focus on things like expected testimony or witnesses’ cooperation with the authorities, for example.
Trump’s team rushed to challenge the gag order nonetheless, but the appeals court upheld it. Yet Trump has continued to flout the order with zero interruption. He openly violated the gag order on social media the very day after losing the appeal, and continued to do so until two days before his court date.
Then, on Monday, Trump continued to violate the judge’s orders inside the courtroom as well. He initially indicated to Merchan that he understood that the law and court rules allow for his ejection from the court, or time in jail, if he interrupted the proceedings, according to reporters who were in court on April 15.
Yet, as the proceedings unfolded, Trump smirked and scoffed and at times fell asleep. The defendant openly glowered at prospective jurors; and, when Justice Merchan explained that he would be responsible for imposing an appropriate sentence, the former president “let out a sarcastic chuckle,” The New York Times reported.
So much for the courtroom being a judge’s kingdom.
Merchan himself nearly conceded that Trump was committing witness intimidation in real time.
“Your client was audibly uttering something,” Merchan said at one point. “I won’t tolerate that. I will not have any jurors intimidated in this courtroom. I want to make that crystal clear.”
Merchan announced that he will hold a hearing on April 23 to consider whether to sanction Trump with $3,000 in fines for his latest violations of the gag order—a formality that seems frivolous in and of itself.
As the proceedings came to a close, the Trump campaign sent out a fundraising email blast claiming—falsely—that he had “STORMED OUT OF BIDEN’S KANGAROO COURT,” as if to add one more insult to injury.
Trump’s regard for the authority of the courts is similarly absent in other cases.
The former president has quite literally dared judges to kick him out of court; and he has in fact stormed out of other courtrooms before. In January, for example, Trump suddenly rose from his seat and left the courtroom during closing arguments in a defamation trial against him. (The judge asked the court reporter to make note of the transgression.)
At this point, there’s no real question about it: Trump openly violated court rules and orders in the hush money case, and sanctions would be warranted. The former president has thus far made a mockery of the court process and the judge’s authority, and we can expect more of the same in the future if there are no consequences.
There’s also very clear precedent here, including in cases against Trump.
First, a federal appeals court and courts in New York have already considered how to balance Trump’s First Amendment rights as a candidate for president against the interests of the courts and law enforcement. And they’ve held that limits can be imposed if they’re narrowly tailored to prevent Trump (or any other candidate-defendant) from saying intimidating things about a person’s specific role as a witness. The order in the hush money case that Trump has continued to violate was carefully crafted to meet those standards.
Trump was also held in contempt and fined $110,000 in 2022 for withholding documents requested via subpoena in a civil fraud trial.
And of course, judges, as a general matter, have tons of discretion to check a defendant’s disruptions and flouting of their orders.
Justice Merchan could boot Trump from the courtroom and sequester him elsewhere, with video and audio access to the proceedings, for example. Also, he can obviously increase the fine amounts for each future violation.
Katzberg added that New York law allows the judge full discretion to find a defendant in criminal contempt for violating court orders in the judge’s presence—a felony punishable by fines and the full gamut of probation terms. Merchan could even ratchet up the punishment for each successive offense, and he could do so outside the presence of the jury, and while withholding the actual terms of his punishment or sentence until after trial, Katzberg said.
That’s one approach that might deter Trump’s constant abuse and disrespect of the process, without providing an opportunity for him to portray himself as a victim to the public or the jury. There are plenty of options available. At this point, giving Trump more passes just cements the notion that this particular defendant is actually above the law.
