Editorial: Judge should jail Trump for any new gag order violations in hush money trial

For his 10th violation of Acting Manhattan state Supreme Court Justice Juan Merchan’s gag order — this time for complaining about the supposed political affiliation of the jury — Donald Trump must pay another $1,000 fine. Yet in his order, Merchan put Trump “on notice that if appropriate and warranted, violations of [the court’s] lawful orders will be punishable by incarceration.”

Merchan was even more forceful from the bench: “It’s important you understand that the last thing I want to do is put you in jail.” But Merchan is going to have to stop making threats and act, or accept Trump will continue to break his rules. Another threat, another fine without a trip to the lockup will mean this is just another thing that Trump has gotten away with, as he has all of his 77 years.

This isn’t just a question of whether staffers or jurors being merely uncomfortable about being called out by Trump, but having real safety concerns about what might come. It was his direct incitement, after all, that riled up a mob to ransack the Capitol, a mob that was fully prepared to attack members of Congress and even hang the vice president at Trump’s command.

Rather than prove Trump is getting railroaded, as he and his supporters argue, Merchan’s unwillingness to apply some time behind bars shows the extent to which the former president is getting off easy.

There is no way a less prominent defendant would be walking away from 10 substantiated gag order violations with some pesky fines. The gag order does not curb Trump’s free speech. It is a tailored prohibition against specifically commenting on witnesses, jurors, court staff, prosecutors and family members, including of the judge himself.

There is no legitimate need for Trump to attack these people, and there are very legitimate reasons for him to be barred from doing so, not least of which the former president is at the very least unwilling to rein in his supporters’ violent impulses.

It’s worth noting that only one of the four contempt claims brought by prosecutors this round were substantiated by the judge, with the other three — about witnesses Michael Cohen and David Pecker — being deemed inconclusive. That includes Trump’s winking assertion that “David’s been very nice. A nice guy,” a veiled threat right out of a bad mob movie. That was, according to the ever-careful Merchan, not enough to constitute a violation.

The kid-gloves treatment has, for the near-decade that Trump has loomed so large over our political system, never worked. The odds that after all these years — and after Trump has all but directly said that his biggest takeaway from his first term was an excess of respect for the rule of law — he will keep himself in check without real consequences are, practically speaking, nonexistent. He will not stop until he is forced to stop. Every other outcome only reinforces his Pavlovian impulse to belittle, attack and dominate.

We all know where this ends. It won’t be enough to simply jail Trump on contempt charges, but showing that he is not actually immune from the rules that govern everyone else will go a long way towards breaking the spell and exposing this domineering as just one more of the con man’s frauds.

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