Opinion | In the New York case, it’s time Merchan holds Trump in contempt

By the time Justice Juan Merchan held Tuesday’s hearing in Donald Trump’s business records falsification case, the district attorney had accumulated 10 instances in which the four-times-indicted former president had violated the court’s order prohibiting him from threatening witnesses and jurors. The question was not really whether Trump had violated the gag order, but what, if anything, was Merchan going to do to protect jurors, witnesses and the integrity of the court.

Prosecutor Chris Conroy, arguing to hold Trump in contempt, reeled off the list of violations. He asserted that the hullabaloo Trump’s attacks set off had already resulted in the loss of one juror, who complained about the press feeding frenzy. Conroy asked for the statutory limit of $1,000 per offence. He also requested that Merchan order Trump to take down the offending posts and warn him that future violations could result in incarceration. The requested penalty was strikingly mild, given the magnitude and multiplicity of the violations.

Trump lawyer Todd Blanche repeatedly drew Merchan’s anger like few attorneys I have ever seen. “Justice Merchan has repeatedly pushed Todd Blanche to clarify his arguments, only to have Blanche deny that he is saying what he seems to be saying,” the New York Times recounted. “Trump is very lucky that the jurors are not here for this. Merchan is really dressing down Blanche right now.” Merchan scolded Blanche at one point: “You’ve presented nothing.”

Merchan rejected Blanche’s argument that Trump’s post impugning the jury was simply a repost of an item by Fox News commentator Jesse Watters. “Your client manipulated what was said and put it in quotes,” Merchan said. As the argument wound down, Merchan blasted Blanche: “Mr. Blanche, you are losing all credibility.” It is one thing to lose a motion; it is quite another to alienate the judge so early in a trial.

Such exchanges encapsulate the impossibility of crafting arguments to excuse Trump’s indefensible actions without running afoul of the truth and infuriating the judge. The defense counsel cannot control their client. Instead, they perform for him, reciting ridiculous and easily refuted arguments. That may fly in MAGA politics, but it’s a disaster in the courtroom.

With so many discretionary calls left for Merchan to make, the defense counsel’s missteps — on everything from jury instructions to objections to testimony — may damage their ability to persuade the judge on key issues. (The judge already upheld a surprising number of objections to Blanche’s opening statement, a rarity in criminal cases.) Since most of these decisions would be purely discretionary, adverse rulings would not provide Trump with grounds for appeal.

While the judge has yet to rule, few doubt he will side with the prosecution. The hard test will come when Trump, unable or unwilling to contain himself, acts up again. At that point, Merchan may decide to incarcerate him for a brief time, perhaps when the court is not in session so as not to unduly prejudice the jury. That said, there may come a time when Trump gets reprimanded in the presence of the jury — or is even removed for an extended incarceration. (His absence no doubt would be shocking to the jury.)

This sort of struggle with a recalcitrant defendant virtually never occurs. Most criminal defendants fear enraging the judge who possesses so much control over their fate. That a former president again seeking the job of chief executive — whose job it is to enforce the law — is repeatedly defying the court makes the situation all the more stunning. While Merchan’s slap-downs may not impress Trump followers, who continue to view him as a victim, less ardent Republicans and independents may begin to get queasy about electing someone with such disdain for the law.

Finally, Trump should be concerned about a very concrete ramification of his defiance of the court. Under New York law, the defendant’s “history, character and condition” are relevant criteria. Refusal to follow the court’s orders, bullying of witnesses and jurors, and contempt for the judiciary as a whole would almost certainly weigh against him.

Trump might avoid incarceration for now, but his open and persistent defiance of the court may land him briefly behind bars before the trial is out — or, worse, for an extended time after conviction.