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Harry Litman, the senior legal affairs columnist for the Los Angeles Times opinion page, is a former U.S. attorney and deputy assistant attorney general.
Judge Juan M. Merchan has, in his soft-spoken but hard-nosed way, told Donald Trump something no other court has over the course of his many civil and criminal cases: He’s down to his last chance.
Merchan ruled Tuesday on contempt motions brought by the Manhattan district attorney’s office in response to Trump’s serial violation of a gag order prohibiting public statements about witnesses, jurors and others connected to the hush money case. The judge was calm, straightforward and utterly undramatic in announcing that he had found violations in nine of the 10 instances cited by prosecutors.
It was Merchan’s written order that contained the thunder. It forcefully and convincingly rejected Trump’s arguments that the order permits him to respond to supposed political attacks or excludes reposting of others’ social media comments. (It was when Trump lawyer Todd Blanche made those arguments in court that Merchan ominously warned he was in danger of “losing all credibility.”)
Merchan really lowers the boom near the end of the written ruling, advising Trump in no uncertain terms that if he insists on forcing the judge’s hand, he is prepared to put him in jail.
“Defendant is hereby warned,” Merchan wrote, “that the court will not tolerate continued willful violations of its lawful orders and that if necessary and appropriate under the circumstances, it will impose an incarceratory punishment.”
That’s appropriate given the limited legal tools at Merchan’s disposal.
Other courts — for example, the federal court handling the Jan. 6 case — can take several intermediate steps to manage a recalcitrant defendant. And those courts have done backflips to avoid putting Trump in jail, being very aware of the political cyclone it could occasion.
But Merchan’s court is more constrained. New York law essentially gives him the option of a fine of up to $1,000 for each act of contempt or a jail term of up to 30 days.
And as Merchan wrote, “While $1,000 may suffice in most instances to protect the dignity of the judicial system, to compel respect for its mandates and to punish the offender for disobeying a court order,” it doesn’t do the trick in the case of a defendant as wealthy as Trump.
Given this dilemma, Merchan could go through several rounds of thousand-dollar fines. But he left it to Trump to decide whether to play the martyr and go to jail for political reasons.
If the former president is determined to continue on his defiant course, Merchan’s unavoidable responsibility will be to have him ushered to a jail cell, beginning perhaps with a short stay in the holding cell at the back of his court. The judge must recognize that his credibility and that of the proceedings are at risk if he lets Trump continue to thumb his nose at his orders without more serious consequences.
Merchan already scheduled a hearing Thursday to adjudicate four additional alleged instances of contempt on Trump’s part. Don’t expect him to put Trump in custody for those: They occurred before he had issued the clear warning in Tuesday’s opinion.
But if Merchan does find those to be more willful violations of his orders, they look to be the last he will tolerate without a dramatic escalation of the penalties. The lines are drawn; Trump is almost out of chances and knows it.
The defendant may nevertheless dare Merchan, as he did another judge threatening to jail him, to “make my day.” But he had better not be bluffing, because he’s up against a judge who isn’t.
