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What Does Donald Trump’s Gag Order Really Mean?

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Former President Donald Trump’s Hush Money Trial Continues In New York

Photo: Timothy A. Clary/Pool/Getty Images

Donald Trump has spit in the face of a judicially-imposed gag order, and now he faces astonishingly serious consequences: he might have to cut a check for (brace yourself)… $15,000, max. He’s sure, now, to face financial ruin – unless he can sell a couple hundred commemorative Trump bibles to cover the expense. Trump f’d around, as the kids say, and now he’s about to find out. But what he’s learning is that the consequences for his misconduct are laughable, and he might as well do it again.

The gag order about which Trump constantly rails is actually quite narrow. The order, handed down by Judge Juan Merchan in the ongoing hush money case in Manhattan, originally established three classes of trial participants who were off-limits to Trump’s public rantings: (1) jurors, (2) “known or reasonably foreseeable witnesses,” and (3) staffers (the court’s and the DA’s) and their families. Everyone and everything else remained fully in play.

True to form, Trump immediately zeroed in on the most vulnerable target who was not technically covered by the gag order. He launched a series of attacks at Judge Merchan’s daughter, who works for a Democratic political consulting group. You can almost track Trump’s internal monologue: “Let’s see, I can’t criticize the judge’s staff or their family members… but it doesn’t say I can’t criticize the judge’s own children!” Judge Merchan promptly amended the gag order to include his own family members, and the DA’s.

The irony, of course, is that Trump’s own hallway screeds are Exhibit A as to why that very same gag order about which he complains is, if anything, quite permissive. He goes off regularly about how oppressive the order is – “I’m not allowed to speak,” he declared, while speaking – and he’s fully within his rights to do so. Indeed, the gag order permits Trump to criticize – vociferously, angrily, profanely if he wishes – the indictment, the judge, and the District Attorney. The gag order even allows Trump to criticize the gag order itself.

Trump immediately adopted a deviously clever workaround, or near-workaround. He began re-posting media clips of other people making statements that would’ve squarely violated the gag order had they come out of Trump’s mouth, including coverage that branded Michael Cohen a “serial perjurer” and a Fox News claim that “undercover Liberal Activists” were trying to lie their way onto the jury. This is the equivalent of the classic big-brother move where you grab your little brother’s arm, make him smack himself in the face, and then protest, “It’s not me, he’s hitting himself!”

Judge Merchan and the DA have, at bottom, a discipline issue here, and a Goldilocks dilemma in enforcing it: some remedies are too cold, but the other is too hot.

The first level of discipline is a verbal reprimand. For any ordinary, rational trial participant, the prospect of ticking off the judge – the guy who runs the trial, and decides what evidence the jury can hear, and imposes sentence – would be sufficient deterrence. But Donald Trump couldn’t give a whit about some words from some guy in a robe.

Then you have financial penalties. It’s already tough enough to make a billionaire care about some court fine, but the situation in New York is particularly silly. According to the District Attorney’s filing, the maximum fine allowable under an antiquated New York law is the jaw-dropping sum of a thousand bucks. It’s like Austin Powers threatening to hold the world hostage unless he’s paid… one million dollars.

And then there’s the big one: imprisonment. Judge Merchan does have the power to send Trump to the brig for up to 30 days for contempt of court. And while a cottage industry has emerged around former prosecutors provocatively predicting that Trump will find himself behind bars for violating the gag order, that’s more fantastical wishcasting than sober assessment of reality. Trump, for his part, either doesn’t fear pre-trial imprisonment, or perhaps even welcomes it; he boasted that it would be “my great honor” to get locked up for speaking out about the trial. Indeed, if Judge Merchan were to imprison Trump for talking about the case, he would turbo-charge the MAGA base. And he’d provide fuel for Trump’s claims of grievance that would resonate even with some moderates.

Think of the Judge’s dilemma here from the perspective of a parent trying to keep unruly toddlers in line during a roadtrip to Disneyland. You’ve got a few small punishments in the arsenal, but the kids don’t really care about those: yell, put ‘em in timeout, no candy at the rest stop, ok, fine, they can live with that. And then you’ve got one massive punishment that the kids do care about – I swear, I’ll turn this car around! – but they also know you aren’t really going to do that. You’re stuck. (Note: this scenario must occur in the 1980s because now parents can just threaten to take away the iPads, and the kids snap into compliance.)

Judge Merchan is making the situation even more intractable by his inexplicable delay in coming down with a ruling. Even as Merchan takes his precious time, Trump continues to recidivate on a rolling, real-time basis; on Thursday, prosecutors alleged four new gag order violations, all committed while the Judge spins his wheels about how to handle Trump’s initial flurry of infractions.

The first rule of discipline is that it only works if it’s swift and certain. Yet Judge Merchan, who is otherwise deeply committed to keeping control of his courtroom, has responded thus far with an astonishing lack of urgency. No doubt, the Judge will slap Trump when he finally does get around to ruling (presumably Friday, but who knows). But he’s already let Trump get away with far too much.

This article originally appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com

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