Originally published April 22, 2024; updated April 25, 2024
Trial in The People of the State of New York vs. Donald J. Trump, the first-ever criminal prosecution of a former U.S. president, began on Monday, April 15. Although the trial is still in its early stages, Trump has already run into trouble with a court “gag order” restricting his extrajudicial statements about trial participants. On the opening day of trial, the office of District Attorney for New York (DANY) Alvin Bragg sought an order to show cause, alleging that Trump was in contempt of court for violating the gag order. That same day, the court granted the order to show cause, meaning that the allegations were sufficient to warrant a hearing, which it set for Tuesday, April 23.
Undaunted, Trump went on to make additional statements that prosecutors allege also violate the gag order. Three days later, on April 18, DANY submitted a supplemental filing identifying seven more alleged violations of the gag order. The court issued an order to show cause the same day, again finding the allegations were sufficient for the hearing to be held on Tuesday.
As if that were not enough, the DA alleged four new violations on the morning of April 25, in which Trump made extrajudicial statements about not only Cohen, but even the jury and the witness who was about to resume testifying, David Pecker. Prosecutors sought a new order to show cause and as of this writing, the judge is considering whether to sign it.
Below we explain the gag order, the alleged violations, and the legal framework. We then assess the strength of the prosecution’s case and what may follow.
The Gag Order
In May 2023, the court originally issued a protective order prohibiting Trump from disclosing on social media or elsewhere any discovery the defense received from the prosecution as well as the names and identifying information of personnel from DANY—other than sworn members of law enforcement, assistant district attorneys and trial witnesses (the latter could be disclosed only once jury selection began). In granting the protective order, Justice Juan Merchan, the presiding trial judge, explained, “It’s certainly not a gag order,” as Trump was allowed to publicly discuss the case.
In February 2024, DANY filed a motion seeking a narrowly-tailored gag order to prohibit Trump from making statements outside of court intended to threaten, intimidate or harass jurors, prosecutors, witnesses, or court staff. The motion contended that Trump’s “[a]dvocacy of revenge and retribution against perceived opponents” justified such an order. The motion cataloged Trump’s long history of verbally attacking people involved in legal proceedings against him and his allies, offering examples from this case, the D.C. federal criminal prosecution, the Georgia state prosecution, the NY civil fraud case, and the prosecution of Roger Stone.
Trump opposed the motion, arguing it would be unconstitutional to restrict his political speech, especially when he is the presumptive Republican nominee for president.
On March 26, 2024, the court granted, in substantial part, DANY’s request to restrict Trump’s prejudicial extrajudicial statements. Justice Merchan imposed a narrowly-tailored gag order that prohibits Trump from making or directing others to make public statements about witnesses, DANY counsel and staff (other than DA Bragg) or their families, court staff or their families, and jurors. The gag order closely tracks the one adopted by the DC Circuit in the federal election interference case against Trump, here with the additional protection for jurors.
In granting the motion, Justice Merchan rejected Trump’s argument that as the presumptive Republican nominee for president, he needs to be able to respond to political attacks and “criticize these public figures.” The judge found that Trump’s history of extrajudicial statements “went far beyond defending himself against ‘attacks’ by ‘public figures,’” and included “threatening, inflammatory, denigrating” statements targeting local officials, prosecutors, court staff, and jurors “performing their civic duty.” The court concluded that these types of statements “undoubtedly risk impeding the orderly administration” of the court, with no less restrictive means to guard against that risk short of a limited gag order.
The court’s order is consistent with New York and U.S. Supreme Court law which, in order to protect the administration of justice, allows a court to restrict a party’s extrajudicial speech that is “substantially likely to have a materially prejudicial effect” or that presents a “‘reasonable likelihood’ of a serious and imminent threat” to the integrity of the trial.
On March 27 at 10:30 am, the morning after the gag order was entered, Trump mentioned Justice Merchan’s daughter in a post on Truth Social in which he criticized the gag order, saying she was “allowed to post pictures of her ‘dream’ of putting me in jail.” One minute later, Trump again posted about the judge’s daughter, saying she “represents Crooked Joe Biden, Kamala Harris, Adam ‘Shifty’ Schiff, and other Radical Liberals.” (It was later determined that Merchan’s daughter had not posted any such image of Trump; the false claim started with a prominent conspiracy theorist.)
On March 28, DANY filed a letter asking for clarification that the gag order, which expressly covered “family members of any counsel or [court] staff,” was also intended to cover members of the judge’s family. Trump responded, arguing that the gag order should not apply to the judge’s family because his daughter was “actively supporting adversarial campaign speech” by Trump’s political opponents. DANY filed a second letter on April 1 asking the court to expand the order if it was determined not to currently cover the judge’s family.
Trump made several more posts about Merchan’s daughter in the days that followed, leading to DANY filing another brief on April 1 to curb what it described as Trump’s “dangerous, violent, and reprehensible rhetoric.” It wrote:
There is no constitutional right to target the family of this Court, let alone on the blatant falsehoods that have served as the flimsiest pretexts for defendant’s attacks. Defendant knows what he is doing, and everyone else does too. And we all know exactly what defendant intends because he has said for decades that it is part of his life philosophy to go after his perceived opponents “as viciously and as violently” as he can.
Trump responded, rehashing arguments he had raised while challenging the existing gag order and rejecting the need for any clarification to cover the court’s family.
On April 1, the court granted the DA’s motion, clarifying the gag order to include the court’s family. The judge wrote:
[Trump’s] pattern of attacking family members of presiding jurists and attorneys assigned to his cases serves no legitimate purpose. It merely injects fear in those assigned or called to participate in the proceedings, that not only they, but their family members as well are ‘fair game’ for Defendant’s vitriol. … To argue that the most recent attacks, which included photographs, were ‘necessary and appropriate in the current environment,’ is farcical.
The Court’s April 1 order further stated that Trump was “hereby warned that any violation of this Order will result in sanctions under Judiciary Law §§ 750(A)(3) and 751.”
The order now reads:
ORDERED, that the Court’s Order of March 26, 2024, is amended as indicated below.
Defendant is directed to refrain from:
a. Making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding;
b. Making or directing others to make public statements about (1) counsel in the case other than the District Attorney, (2) members of the court’s staff and the District Attorney’s staff, or (3) the family members of any counsel, staff member, the Court or the District Attorney, if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is likely to result; and
b. Making or directing others to make public statements about any prospective juror or any juror in this criminal proceeding.
Trump’s Alleged Violations of the Gag Order
DANY’s initial April 15 request for an order to show cause—effectively a motion to find Trump in contempt of court—argues that there is “good cause” for believing that three social media postings by Trump (numbers 1-3 below) violate the gag order. DANY argued the statements relate to witness credibility and were made “on the eve of trial” and Trump, with recent knowledge of New York gag orders and their scope, acted willfully and “deliberate[ly] flout[ed]” the Court’s mandate. As a result, DANY sought a finding of contempt and the maximum $1,000 fine for each of Trump’s three violations of the gag order. (As we explain below in discussing the law, that is the maximum amount for the relevant contempt statute; other statutes not relied upon here have different maximum fines.) The prosecutors also asked the court to order Trump to remove the posts, and to warn him that future violations could lead not only to fines but jail time of up to 30 days.
Three days later, on April 18, DANY supplemented its motion for contempt, raising seven more alleged violations of the gag order (numbers 4-10 below). DANY explained the additional (alleged) violations occurred:
after this Court issued the order to show cause to hold defendant in criminal contempt; after the Court warned defendant on Monday that there was no exception in the orders allowing defendant to make statements about witnesses who defendant perceives to have attacked him; and after this Court made it “crystal clear” to defendant that it would not “tolerate” his gestures and statements to jurors in the courtroom.
The court issued an order the same day, again finding the allegations were sufficient to warrant addressing at the hearing scheduled for Tuesday, April 23.
The 10 posts allegedly made by Trump across his Truth Social and campaign website from April 10 through April 17 that DANY claims violate the gag order are as follows:
1. April 10, 2024, at 10:07 AM
- Trump reposted to his Truth Social a Truth Social post by Michael Avenatti, Stormy Daniels’ former lawyer who was convicted of stealing from her.
- Avenatti’s post read: “We can’t be hypocrites when it comes to the 1st Amendment. It is outrageous that Cohen and Daniels can do countless TV interviews, post on social, & make $$ on bogus documentaries – all by talking shit about Trump – but he’s gagged and threatened with jail if he responds.”
- Trump’s repost further added: “Thank you Michael Avenatti—for revealing the truth about two sleaze bags who have, with their lies and misrepresentations, cost our Country dearly!”
2. April 10, 2024, at 10:48 AM
- Trump shared on his Truth Social platform a picture of a document titled “Official Statement of Stormy Daniels,” dated Jan. 30, 2018, in which Daniels denied having an affair with Trump: not because she was paid “hush money,” but rather “because it never happened,” the statement read.
- Trump’s post of the statement was accompanied by the following words by Trump: “LOOK WHAT WAS JUST FOUND! WILL THE FAKE NEWS REPORT IT?”
3. April 13, 2024, at 12:56 PM
- Truth Social post by Trump: “Has Mark POMERANTZ been prosecuted for his terrible acts in and out of the D.A.’s Office. Has disgraced attorney and felon Michael Cohen been prosecuted for LYING? Only TRUMP people get prosecuted by this Judge and these thugs! A dark day for our Country. MAGA2024!!!”
- Trump reshared to his Truth Social an April 14 article by Jonathan Turley in the New York Post, titled “A serial perjurer will try to prove an old misdemeanor against Trump in an embarrassment for the New York legal system”
5. April 15, 2024, at 10:26 AM
- Trump again reshared to his Truth Social an April 14 article by Jonathan Turley in the New York Post, titled “A serial perjurer will try to prove an old misdemeanor against Trump in an embarrassment for the New York legal system”
- Trump provided a link to Jonathan Turley’s New York Post article on his campaign website. “ICYMI: ‘A serial perjurer will try to prove an old misdemeanor against Trump in an embarrassment for the New York legal system’”
- Trump again reshared to his Truth Social Jonathan Turley’s New York Post article.
- Trump again shared a link to Jonathan Turley’s New York Post article on his campaign website.
- Trump reshared to his Truth Social an April 3 op-ed by Andrew McCarthy in the National Review, titled, “No, Cohen’s Guilty Plea Does Not Prove Trump Committed Campaign-Finance Crimes”
- Trump’s Truth Social post quoted a remark by Fox News commentator Jesse Watters regarding the prospective jurors: “‘They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury,’ Jesse Watters”
Note: the following four new and additional violations were offered by the prosecution on the morning of April 25 as the basis for a third contempt motion. They concern extrajudicial statements that went after not only Cohen, but even the jury and the then-current trial witness who was about to resume testifying, David Pecker. Prosecutors sought a new order to show cause and, as of this writing, the judge is considering whether to sign it.
11. April 22, 2024
- Moments after he emerged from the courtroom, Trump told reporters, “When are they going to look at all the lies Cohen did in the last trial…he got caught lying, pure lying.”
12. April 22, 2024
- Trump told Real America’s Voice in an interview, “That jury was picked so fast. 95% Democrats…You think of it as a purely Democrat area. It’s a very unfair situation.”
13. April 23, 2024
- Trump gave an interview with Action News in Pennsylvania and said, “Michael Cohen is a convicted liar, and he’s got no credibility whatsoever. He was a lawyer and you rely on your lawyers. But Michael Cohen was a convicted liar. He was a lawyer for many people, not just me. Then he got in trouble because of things outside of what he did for me.”
14. April 25, 2024
- Trump spoke to reporters about David Pecker, who was set to resume testifying that day, saying, “David’s been very nice, a nice guy.”
If the court finds that Trump has in fact violated the order, the court has several options to sanction him under the New York law of contempt. The law gives the court this authority to maintain order in the court and the court proceedings generally. A discussion of those options under the applicable statute follows. For the sake of clarity and completeness and for future reference, we also outline the other contempt statutes not currently invoked by the prosecution.
The Law of Contempt in New York
Contempt law in New York can be confusing as there are three types of contempt under state law: criminal contempt under the Judiciary Code (here at issue), criminal contempt under the Penal Code, and civil contempt. Criminal contempt under both the Judiciary and Penal Codes is intended to protect the public’s right to the efficient administration of justice through a judicial branch that can enforce its own orders. But there are significant differences between the two, and between them and civil contempt, including whether the remedy is designed to (1) punish a violation (the point of criminal contempt) or (2) to compel behavior (the object of civil contempt).
A. Judiciary Code Sections 750 & 751 (at issue here)
The DA’s Office has asked the court to punish Trump for criminal contempt violations under sections 750 and 751 of the Judiciary Code. Section 750 covers disorderly conduct before the court, publication of a “grossly inaccurate report” of a proceeding, and—as DANY has alleged—“willful disobedience to [the court’s] lawful mandate.” NY JUD 751(A)(3). Section 751 provides the penalties for contempt, including a fine up to $1,000 and/or 30 days in jail per incident. Despite the name, criminal contempt under the Judiciary Code is not a crime. Criminal contempt proceedings under the Judiciary Code “are neither civil nor criminal. They are sui generis special proceedings to coerce future obedience or punish past disobedience.” The order to show cause motion filed by the DA’s office serves as the accusatory instrument. The hearing will provide the fact finding before the judge, who will have to find that the defendant violated the order beyond a reasonable doubt.
B. Penal Code Section 215.50
By contrast, contempt under New York Penal Code section 215.50—which is not being sought here—is a crime. Criminal contempt in the second degree, a misdemeanor, covers the same general type of conduct as in the Judiciary code, including “disorderly, contemptuous, or insolent behavior” committed in the court’s “immediate view and presence” that tends to interrupt its proceedings or challenge its authority. Criminal contempt in the first degree, a felony, covers threats of physical danger. For contempt under the Penal Code section 215.51, a defendant would be formally charged with a crime with an accusatory instrument, resulting in a separate proceeding where the people would have to prove the defendant’s guilt beyond a reasonable doubt. The maximum penalties are also higher than under the Judiciary Code, with second-degree contempt potentially resulting in one year of imprisonment and first-degree contempt, a class E felony, having a maximum penalty of up to four years of imprisonment. Criminal contempt under both the Judiciary and Penal Codes must be proven beyond a reasonable doubt. With respect to the burden of proof under Penal Code Criminal contempt, see, e.g., Town Bd. of Southampton v. R.K.B. Realty, LLC, 91 A.D.3d 628, 629 (2d Dep’t 2012). Under the Judiciary Code, see, e.g., N.Y.C. Coal. to End Lead Poisoning v. Giuliani, 245 A.D.2d 49, 50 (App. Div. 1st Dept. 1997); In re: Winograd, 2020 NY Slip Op 03587, 184 A.D.3d 1073, 1075 (App. Div. 3rd Dept.).
C. Civil Contempt
Whereas criminal contempt is intended to protect the public’s right to a functioning judicial system, the purpose of civil contempt—again not here at issue—is to protect the rights of both the government and private parties involved in a court proceeding and designed to compel future behavior rather than to punish past behavior. Civil contempt, governed by NY Judiciary Code section 753, covers a wide array of conduct that violates, impairs, impedes, or prejudices a party’s right, including disobeying a court order. Examples of civil contempt include a parent who fails to pay child support or a witness who fails to appear in response to a subpoena. Civil contempt can be proven by the lower standard of preponderance of the evidence. Note that unlike the criminal contempt statute here at issue that limits the penalty to $1,000 per episode, there is no financial cap for civil contempt.
Another important difference between these varieties of criminal contempt and civil contempt is that the former are meant to be punitive, whereas the latter is intended to be coercive. In other words, all three involve potential penalties of jail time or fines. But criminal contempt punishes a person for their past misconduct, whereas civil contempt is intended to bring the person into compliance going forward. That being said, punishing prior wrongdoing can also have a deterrent effect on its future recurrence.
It was under section 753 that Trump was previously and repeatedly held in contempt for extrajudicial statements in his New York civil fraud trial. There Manhattan Supreme Court Justice Arthur Engoron had implemented a narrow gag order prohibiting Trump from commenting about court staff in response to the ex-president’s repeated criticisms of one of Engoron’s clerks. A New York appellate court upheld the decision. Less than three weeks after the gag order was imposed, Engoron found Trump to be in civil contempt for violating the gag order and fined him $5,000.
The judge did so notwithstanding arguments that the posts on Trump’s campaign website were inadvertent, noting that Trump had “received ample warning” and had said he would abide by the order. Concluding, Engoron warned Trump:
“Make no mistake: future violations, whether intentional or unintentional, will subject the violator to far more severe sanctions, which may include, but are not limited to, steeper financial penalties, holding Donald Trump in contempt of court, and possibly imprisoning him pursuant to New York Judiciary Law § 753.”
Days later, Trump violated the gag order again and was this time fined $10,000. That sanction seemed to put an end to the violations. That almost certainly was not because of the increasing amounts of the fines; $10,000 is hardly a significant sum to the former president. Likely, it was because it appeared that the judge was possibly escalating toward some form of confinement, and Trump made the determination that that was not in his best interest.
Analysis of Trump’s Alleged Criminal Contempt
To sustain a finding of criminal contempt under the Judiciary Code based on an alleged violation of the court’s gag order, DANY must establish the following elements beyond a reasonable doubt (see 21 N.Y. Jur. 2d Contempt § 36):
- There was a lawful court order in effect (i.e., that the court had jurisdiction);
- The court order expressed a clear and unequivocal mandate;
- Trump had actual knowledge of the order’s terms;
- Trump violated the order; and
- Trump’s violation was knowing and willful.
We review all five elements, although the inquiry is likely to focus on 2, 4, and 5. We focus the analysis only on instances 1-10 above, as the judge is still considering whether to issue an order to show cause for 11-14 as of this writing.
Element 1: Lawful Court Order in Effect
DANY will easily be able to establish element one. The gag order was issued by a court of competent jurisdiction and is not invalid on its face. See Dalessio v. Kressler, 6 A.D.3d 57, 65 (2d Dep’t 2004). As DANY notes in its motion, as a criminal defendant, Trump came under the jurisdiction of the court when he was arraigned, and Merchan’s order restricting Trump’s extrajudicial statements was one that courts are authorized, and often do, issue in criminal proceedings.
Trump is currently challenging the gag order in the appellate courts. As DANY’s first contempt motion noted, Trump’s Article 78 petition in the First Department specifically seeks to bar enforcement of certain aspects of the gag order, including, as relevant here, its “restrictions on speech regarding Michael Cohen” and Stephanie Clifford (a.k.a. Stormy Daniels). But as DANY also made clear, New York law does not allow a defendant to act contrary to a gag order because the defendant disagrees with it even if the defendant is appealing it.
So long as Merchan had the jurisdiction to issue the gag order (which he unquestionably did) and the gag order was not stayed (which it was not), then this element is satisfied. That is true even if the gag order is eventually overturned on appeal for being erroneous or improvidently made, or for being granted by Merchan under misapprehension or mistake. Trump’s disobedience would still be considered willful contempt. Even a good-faith belief that the gag order is unlawful does not allow Trump to disobey it. See 21 N.Y. Jur. 2d Contempt § 43.
Element 2: Clear and Unequivocal Mandate
The gag order clearly and unequivocally expresses the mandate of the court, that Trump must “refrain from,” inter alia, “[m]aking … public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding,” as well as “[m]aking … public statements about any prospective juror or any juror in this criminal proceeding.”
Trump’s statements are undoubtedly about known witnesses in the case (such as Cohen and Daniels) as well as prospective jurors. They were made in the days leading up to and throughout jury selection, mostly questioning witnesses’ credibility, above all Cohen and to some extent Daniels. One criticized prospective jurors, quoting Jesse Watters and stating “They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury.”
These appear well within the plain language of the order. With regard to Cohen and Daniels, Trump’s statements certainly seem specifically related to their participation in these proceedings based upon their timing during pretrial proceedings and their content. For instance, his April 10 post with a document alleged to be a statement from Daniels directly references the “hush money” payment at issue in the case. And Trump’s later series of posts describing Cohen as a “serial perjurer” mirror his attorneys’ tactics in their motions in limine that seek to preclude Cohen’s testimony by casting doubt on his veracity. There can be little question that the posts are casting aspersions on Cohen’s participation in this case as a known cooperator with prosecutors and as a certain trial witness.
Because there has already been discussion of the matter in court, we have a sense of how Trump will defend himself from this plain reading of the order. (Trump’s responsive papers have also been filed but they are not yet public.) His counsel Emil Bove stated, “I think that the comments this morning called to Your Honor’s attention a couple of issues that have been challenges with the Gag Order [caps in original] from the outset. And they do not establish that there is any willful violations [sic]. In fact, it brings to light some of the ambiguities in the order. Mr. Cohen has been attacking President Trump through public statements with respect to his candidacy. President Trump’s responses are political in nature and intended to defend against what Mr. Cohen is saying in connection with the campaign. Your Honor has said in the April 1st ruling, that the Gag Order did not prohibit President Trump from responding to political attacks. And we submit that’s what he is doing in these posts.”
The flaw in this argument is that these statements do not solely pertain to Trump’s campaign, if at all. When his Truth Social posts mention only Daniels and hush money payments, or only Cohen and allegations of perjury, the factual connection to his campaign is attenuated, to say the least. Rather, these posts are “public statements about known or reasonably foreseeable witnesses concerning their potential participation”—exactly what the gag order prohibits.
Certainly item 10, attacking the jury pool as being rife with “Liberal Activists” has no campaign connection. Casting this kind of baleful scrutiny upon the prospective jurors can have a powerful intimidating effect on them irrespective of the falsity of the statement. In reality, the careful exclusion of jurors with any bias is proof that the process is working to ensure a fair trial. Nevertheless, whether members of the jury pool are liberal or otherwise, they may be affected by this kind of a statement. The risk is highlighted by the fact that it came in the midst of jury selection, and that at least one juror who had been selected expressed nervousness and had to be excused.
Trump will also likely argue the gag order’s prohibition against him “making” statements does not expressly include statements made by others that he shares or quotes, which constitute seven of the ten posts (numbers 4-10). Bove stated, “We dispute that …. reposting statements that are already in public by others violates what Your Honor has set forth.” But resharing another person’s attacks on a witness does not insulate Trump under the plain language of the order. Even the posts that simply reshare other content violate the clear directive not to “make public statements about … witnesses.” The intimidating effect is hardly eliminated by a reposting—targeting is targeting. Indeed, the DA’s submission that led to the original gag order included examples of reposting. See, e.g. Ex. 1 at DANYDJT00209733 (Trump reposting comments by Andrew Napolitano). Had Trump stood outside the courtroom and read the reposted attacks verbatim to the press pool, there would be little doubt that conduct constituted a violation of the gag order. That he reshared them digitally through social media is no different.
Element 3: Actual Knowledge of Terms
As for element 3, there is no dispute that Trump knew about the gag order, as it was discussed repeatedly in open court in his presence, and he frequently criticized it outside the courtroom, including in some of the social media posts alleged to violate it.
Element 4: Violations of the Gag Order
There should be little dispute that posts 1-3, in which Trump directly commented on witnesses, violate the gag order (as we note in the discussion of Element 2 above). They are naked attacks on witnesses in connection with their role in this case. Establishing violations for posts 4-10 will depend, to some extent, on whether the court finds the gag order prohibited sharing other people’s statements (and whether that prohibition was clear and unequivocal). We think the order satisfies those thresholds, again as we explain above.
Expect Trump’s lawyers to argue, as they did in last week’s hearings, that his “limited responses to this barrage of attacks do not deal with [the witnesses’] expected testimony in this case. You know, it’s not as if President Trump is going out and targeting individuals. He’s responding to salacious repeated … attacks by these witnesses.” Yet Trump’s posts reference such topics as hush money and Cohen’s and Daniels’ purported lying, which directly deals with expected testimony as we have noted.
Of potential significance, New York Judiciary Law § 751 provides that a contempt “committed in the immediate view and presence of the court, may be punished summarily; when not so committed, the party charged must be notified of the accusation, and have a reasonable time to make a defense.” The prosecution has provided timestamps of the offending social media posts, one of which (number 5 above: calling Cohen a “serial perjurer”) appears to have been made at 10:26 AM on Monday, April 15 while court was in session. Two others (numbers 4 and 7, identical in content to number 5) bear timestamps suggesting that they were made while Trump was actually in the courthouse but not the courtroom. Some commentators have noted that this emphasizes Trump’s disrespect for the court and might, if those alleged violations meet the standard in § 751, even have allowed the judge to mete out sanctions without the formality of the order to show cause process that was followed here. That prospect should also be borne in mind with respect to future possible violations of the gag order.
Indeed, if the judge takes an expansive view of “in the immediate view and presence of the court” he may decide at the Tuesday hearing to act upon the 11th possible violation that occurred when Trump emerged from court on Monday to tell reporters, “When are they going to look at all the lies Cohen did in the last trial … he got caught lying, pure lying.” However, the more conservative approach, and the one the DA will probably take, is for prosecutors to point out the incident as part of the reason that action is needed, without independently seeking a separate additional sanction.
Element 5: Trump’s Disobedience Was Willful
While the terms of Merchan’s order may be plain, if Trump honestly misunderstood its terms or parameters then there can be no finding of willful disobedience. See Crane v. New York Council 66 of American Federation of State, County and Mun. Employees, 101 A.D.2d 682, 475 N.Y.S.2d 165 (3d Dep’t 1984). Trump was and is fully aware of the gag order’s prohibitory parameters. It is hard to understand how his persistent and repeated statements even after the first order to show cause was served on April 15 does not demonstrate full knowledge that his statements were in violation of the court’s limits. DANY will argue the language was unequivocal and that Trump was aware of the parameters, as it has noted in court: “Judge, the defendant is aware of the April 1st order. We know that from various posts he has made. The day after the order, he posted on his Truth Social account, ‘I was just informed that another corrupt New York Judge Juan Merchan gagged me so I cannot talk about the corruption and the conflict taking place in this courtroom with respect to a case that everyone, including the DA felt should never have been brought. They can talk about me, but I can’t talk about them.’ There he is clearly referencing the witnesses in this case.”
Trump’s attorneys will again raise the idea that the language of the order is sufficiently ambiguous that Trump could not have been certain that the conduct was forbidden, so he could not have acted willfully. In fact, as we explain above, the wording of the order is sufficiently definite to rule out the possibility that these violations were “inadvertent or mistaken,” El-Dehdan v. El-Dehdan, 114 A.D.3d 4, 16-17 (2d Dep’t 2013), aff’d, 26 N.Y.3d 19 (2015).
What Will Happen
We believe that DANY will prove beyond a reasonable doubt that Trump willfully violated the gag order. The first three posts are clear violations. Trump’s potential defense for posts 4-10 in which he shared others’ comments will likely fail. We think that item number 10 is particularly egregious because it targets jurors and because Trump applied a high degree of editorial judgment in picking out exactly this statement. “This is the most disturbing post in light of what happened this morning,” the prosecutor’s told Merchan, in reference to a juror asking to be released out of concern for her safety and that she could be targeted.
The judge would be on firm legal footing to sanction Trump for all of the statements, but in an abundance of caution, may distinguish some of the repostings for the sake of taking a balanced approach and an incremental one. For example, number 9 simply consists of a complete verbatim article with no editing by Trump. That distinction provides an opportunity for the judge to sanction the other repostings while at the same time further clarifying the scope of the order as reaching even verbatim repostings with no editorial selection or quotation whatsoever. Justice Merchan has shown a propensity to find compromise to be fair to the defendant, and we think he will likely seek that or some other concession here as well, while overall rejecting Trump’s actions.
We expect the court to impose fines against Trump for a substantial number of the violations and to warn him that future violations will result in additional fines and potentially jail time. The most difficult question to answer, however, is whether any finding of contempt and resulting punishment will deter this particular defendant from future violations. Prior history suggests it may. As noted above, as the fines increased together with the risk of incarceration in the civil fraud matter, Trump finally stopped. On the other hand, he may view a short confinement as politically beneficial. Referencing Justice Merchan, Trump wrote on social media, “If this Partisan Hack wants to put me in the ‘clink’ for speaking the open and obvious TRUTH . . . .I will gladly become a Modern Day Nelson Mandela – It will be my GREAT HONOR.” He had previously stated in October 2023 that “I don’t mind being Nelson Mandela, because I’m doing it for a reason.” And the amounts of the fines here at issue will not give him pause if he is determined to continue his extrajudicial statements. In the interest of protecting the administration of justice, we must hope for a firm response by the judge on Tuesday morning, and then wait to see what follows from the former president.