I observed in a post earlier today that it would be politically disastrous for Democrats if Judge Juan Merchan were to follow through on his threat to jail former President Donald Trump if the latter continues to flout the court’s gag order. Merchan held Trump in contempt again this morning and fined him another $1,000, bringing the total during trial to $10,000. Under New York law, the potential contempt penalty is up to $1,000 and a potential 30 days’ detention for each offense. So far, Merchan has stuck to fines, which are not apt to deter a billionaire who is running for the nation’s highest office.
The Times reports that the Trump campaign is already fundraising off Merchan’s threat of imprisonment. That underscores the power of the issue.
First, detention would generate resentment among not only Trump supporters but others who may be indifferent (or worse) to Trump but are agitated by the Democrats’ use of the legal system to punish their principal political adversary.
Second, detention would draw more attention to both the ridiculous case brought by Manhattan’s elected progressive Democratic prosecutor, whose usual default position is to shun aggressive prosecution (at least when serious crime is involved), and the political bias of Judge Merchan, who got his spot on the bench in a Democratic Party–dominated system, who made a small-dollar donation to the Biden campaign against Trump in 2020, and whose daughter is a progressive operative, running a political outfit that provides campaign services to high-profile Democrats – including such Trump nemeses as Biden, Vice President Kamala Harris, and Representative Adam Schiff.
The potential detention issue also illustrates a rarely noticed aspect of politics in our federalist system: While Democrats nationally and Manhattan Democrats have lots of common ground, including intense opposition to Trump, their interests are not identical. To the extent any detention of Trump would help Trump politically, that is bad for the Biden campaign. It is not, however, bad for Bragg insofar as his political ambitions in New York are concerned.
To win the DA post, Bragg campaigned on his long record (as a high-ranking lawyer in the state attorney general’s office) of using state power punitively against Trump and his business empire. It is awful for the country that such unabashed politicization of law-enforcement is a credential, rather than a disqualifier. It is simply a fact, however, that progressives approve of “the process is the penalty.” The public in blue states and big blue cities is inclined to reward progressives, such as Bragg and state attorney general Letitia James, who vow that, if elected, they will use the powers of their offices against people, entities, and causes that progressives despise.
Consequently, even if an order detaining Trump for contempt cold damage Biden, it would be coup for Bragg. He will be rewarded by New York Democrats for sticking it to Trump – even if Trump somehow beats the case at trial or on appeal. That is why Bragg’s office is encouraging Merchan to incarcerate Trump even as that prospect must unnerve the Biden campaign.
The logistics of detaining Trump would be challenging, to put it mildly. Undoubtedly, there are conversations ongoing regarding that contingency among the Secret Service, the NYPD, the DA’s office, and potentially the state corrections department.
Normally, a defendant who has not been convicted and sentenced would be detained during trial at either the Manhattan Detention Complex (infamously known as “The Tombs,” near the courthouse), or at the even more infamous Rikers Island. It is hard to imagine either of these facilities as an option for detaining Trump, who presents extraordinary security issues. The former president would have to have round-the-clock Secret Service protection while in custody, so I have to think the Secret Service and the city are thinking about other NYPD- and DA-controlled holding facilities that could be “hardened” for security purposes.
It seems to me that another possibility would be home confinement. Obviously, a person could be ordered detained at worse places than a luxury duplex in Trump Tower. Such an arrangement might thus ameliorate some of the explosive political fallout from incarcerating a former president who just happens to be the de facto 2024 Republican nominee for the presidency.
On the other hand, home detention would only highlight that an objective of the Democrats’ lawfare strategy is to prevent Trump from campaigning.
The purpose of detaining Trump would be to bend his will so that he complies with the gag order. Home confinement would accomplish that purpose only if its duration is long enough to prevent Trump from campaigning on Wednesdays, weekends, and other times when the trial is not in session. Yet, a punitive measure overtly designed to hurt Trump by obstructing his 2024 campaign would simply underscore that the Democrats’ motive for prosecuting Trump is political. That might not be so if the case on trial involved a serious criminal allegation bolstered by strong evidence; but, needless to say, Bragg’s is not such a case.
Trump was angry when he made remarks after today’s court session. I don’t think it was an act — certainly not solely and act. He spoke after a tedious day of testimony from just two business-records witnesses affiliated with the Trump organization. (It would not surprise me if Bragg bumped these witnesses up after Trump’s lawyers reminded the jury, at the close of last Friday’s session, that although the trial had been ongoing for two weeks there had still been no evidence of business-records falsification – i.e., the 34 charges in the case.)
To be sure, Trump’s lawyers are contributing to that snail’s pace: In many if not most criminal cases, when there is no doubt that the records in question are authentic business records relevant to the offenses charged, the defense stipulates to their admissibility, so that it takes just a few minutes, rather than an eight-hour day, to get them before the jury. But that said, prosecutors are plodding along. And today, they further dragged out the stultifying proceedings by not having another witness present and ready to go when today’s second witness finished testifying in the late afternoon. At that point, not only did trial end early for the day (wasting over a half hour); Bragg’s prosecutors then proceeded to inform Merchan that they estimate up to three more weeks may be needed to complete their case.
Trump was not a happy camper, then, when he left the courtroom and entered the pen set up for him to address the media, which he habitually does before and after the day’s court session. He inveighed against what he frames as the Democrats’ scheme to keep him chained to a courtroom when he should be out campaigning, and against the resources Bragg has poured into a trifling case against him when, uptown, Hamas supporters have rioted at and occupied Columbia with seeming impunity, shutting down in-person classes and – as our David Zimmermann reported today – canceling the traditional commencement ceremony.
Trump then ripped Merchan over the gag order and the threat to put him in jail. This was bracing to hear. Up until now, indications were that the former president is so agitated about the possibility of imprisonment that his advisers avoid speaking about it. Today, though, Trump himself not only addressed the possibility head on but asserted that he’d be content to go to jail if it were necessary to illustrate what he regards as the travesty that is unfolding. As he put it: “Frankly, you know what, our Constitution is much more important than jail. It’s not even close. I’ll do that sacrifice any day.”
On his track record, the former president is not going to convince many people that he values our Constitution over his own interests. He does, however, have a shrewd grasp of the politics of the moment.