Nothing short of jail will make a defiant Trump respect court orders

Former President Donald Trump isn’t going to be deterred by nine $1,000 fines for violating a gag order. And his track record shows he isn’t going to be deterred by a thousand $1,000 fines for criminal contempt of court.

Imprisonment is the only option.

Under the law, Justice Juan Merchan, the judge overseeing the former president’s hush-money trial, can impose the following options: a fine not exceeding $1,000, imprisonment not exceeding 30 days, or both.

Before the trial even started, the Manhattan District Attorney’s Office moved to have Trump held in contempt for violating the court’s order restricting extrajudicial statements. The prosecution alleged that Trump made three social media posts about potential witnesses.

That gag order states that Trump is prohibited from “making public statements about known or reasonably foreseeable witnesses concerning their potential participation” in his trial. While that motion was pending, Trump made seven more statements on social media that the prosecution claimed violated the gag order.

Now Justice Merchan has ruled that nine of those statements violated the gag order and held him in criminal contempt; he fined him the maximum amount, $1,000 for each violation.

He went on to state that “the court will not tolerate continued willful violations of its lawful orders” and that he would jail Trump “if necessary and appropriate under the circumstances.”

So, a $9,000 fine and a stern warning for what amounts to attempted witness intimidation.

It is worth remembering that Trump was found liable for sexual assault and defamation of E. Jean Carroll in another Manhattan courtroom in May 2023; a jury awarded here $5 million in damages.

Undeterred by that judgment, Trump continued to defame Carroll, which led to a second lawsuit where Trump was ordered to pay her $83.3 million. Included in that sum is $65 million in punitive damages to deter Trump from continuing to defame her.

Trump has also spent $76.7 million over the last two years on legal fees and draws upon millions of dollars in campaign contributions to fund his defense. The threat of a $1,000 fine each time he makes a public statement or a social media post about a witness or a juror is simply not a deterrent.

A fine of $1,000 is meaningless to indigent defendants as well. When they face overwhelming evidence against them and a lengthy prison sentence if convicted, not only can they not afford the fine but they also are not fazed by the threat of jail since time behind bars feels like a given either way.

Justice Merchan has a defendant who isn’t in custody, isn’t likely to receive a sentence of incarceration even if convicted and is undeterred by the threat of a $1,000 fine.

Do we expect he will restrain himself when he speaks to the press each day entering and leaving the courthouse, at night when he posts on Truth Social and on the weekends when he rambles and rants at political rallies?

It seems almost certain that Trump will continue to violate the gag order, which he has repeatedly complained violates his right to free speech, despite the fact that any attempt to induce a witness to avoid testifying at a trial is a crime in New York.

The prosecution even declined to tell the defense the names of their first three witnesses, a common courtesy, because they feared he would attack them on social media. When Trump’s defense attorneys said they would order their client not to make any social media posts about the witnesses, Justice Merchan responded: “I don’t think you can make that representation.”

Then there are the many ways in which Trump could violate the gag order and commit criminal contempt of court.

Trump cannot make public statements about the witnesses in this trial, he cannot make statements about the prosecutors (except for the elected District Attorney Alvin Bragg) and he cannot make statements about the jurors. He is also prohibited by New York Judiciary Law section 750 from engaging in “contemptuous or insolent behavior” during the proceedings or publishing “a false, or grossly inaccurate report” of the proceedings.

Trump wants to undermine the legitimacy of his trial for political purposes. Therefore, he has a strong incentive to attack witnesses, prosecutors and members of the jury. Justice Merchan should not allow Trump’s wealth to insulate him from the consequences of his actions.

If Trump continues to defy a lawful order of the court, Justice Merchan shouldn’t hesitate to use the only effective deterrent the law allows: imprisonment.

John Gross is a clinical associate professor of Law at the University of Wisconsin Law School and director of the Public Defender Project.