Judge Juan M. Merchán, in his gentle but tough manner, has told Donald Trump something that no other court has told him throughout his numerous civil and criminal cases: he has his last chance.
Merchan spoke Tuesday on contempt motions filed by the Manhattan district attorney's office in response to Trump's serial violation of a gag order barring public statements about witnesses, jurors and others connected to the secret money case. The judge was calm, direct and undramatic in announcing that he had found violations in nine of the 10 cases cited by prosecutors.
It was Merchan's written order that contained the thunder. She forcefully and convincingly rejected Trump's arguments that the order allows him to respond to alleged political attacks or precludes reposting others' comments on social media. (It was when Trump's lawyer, Todd Blanche, made those arguments in court that Merchan ominously warned that he was in danger of “losing all credibility.”)
Merchan actually slows down the boom near the end of the written ruling, warning Trump in no uncertain terms that if he insists on forcing the judge, he is prepared to jail him.
“The defendant is hereby warned,” Merchan wrote, “that the Court will not tolerate continued willful violations of its lawful orders and will, if necessary and appropriate under the circumstances, impose a sentence of imprisonment.”
That's appropriate given the limited legal tools at Merchan's disposal.
Other courts (for example, the federal court handling the January 6 case) may take several intermediate steps to handle a recalcitrant defendant. And those courts have backtracked to avoid putting Trump in jail, being well aware of the political cyclone he could cause.
But Merchan's court is more limited. Basically, New York law gives you the option of a fine of up to $1,000 for each act of contempt or a jail sentence of up to 30 days.
And as Merchan wrote: “While $1,000 may be sufficient in most cases to protect the dignity of the judicial system, enforce its mandates, and punish the offender for disobeying a court order,” it is of no use in this case. of a defendant as rich as Trump.
Faced with this dilemma, Merchan could go through several rounds of fines of thousands of dollars. But he let Trump decide whether to act like a martyr and go to jail for political reasons.
If the former president is determined to continue his defiant course, Merchán's inevitable responsibility will be to have him taken to a cell, perhaps beginning with a brief stay in the holding cell at the back of his courtroom. The judge must recognize that his credibility and that of his process are at risk if he lets Trump continue to flout his orders without more serious consequences.
Merchan has already scheduled a hearing for Thursday to try four additional alleged cases of contempt by Trump. Don't expect him to take Trump into custody for that: They occurred before he had issued the clear warning in Tuesday's opinion.
But if Merchan sees these as more deliberate violations of his orders, it appears they will be the last he will tolerate without a dramatic escalation of sanctions. The lines are drawn; Trump almost has no chance and he knows it.
However, the defendant can challenge Merchan, as he did with another judge who threatened to jail him, to “make my day.” But he better not bluff, because he's facing a judge who doesn't.
Harry Litman is the host of Podcast “Talking about federals” and the Talking about San Diego Speaker series. @harrylitman
