When I was a young guy, there was a story — it may be apocryphal — about a bigger-than-life New York City celeb always engulfed in controversy, Reggie Jackson. It happened, if I’m remembering right, following one of the times Yankee owner George Steinbrenner fired manager Billy Martin, the firebrand former Yankee second baseman — I think it was after Billy, three-sheets-to-the-wind, said of Reggie and Steinbrenner, “One’s a born liar, the other’s convicted” (referring to The Boss’s convictions for illegal campaign contributions to Nixon’s 1972 campaign — Steinbrenner was later pardoned by Reagan).
The Bombers brought in a friendly old hand, Hall-of-Fame pitcher Bob Lemon — kinda the anti-Martin — to bring calm to the Bronx Zoo. Part of restoring order involved enforcing rules. Jackson showed up late one day, and Lemon promptly fined him $100 . . . whereupon, legend has it, Reggie opened his wallet, handed Lemon three crisp $100 bills, and explained that he’d be late the next two days, too.
I’ve always chuckled at that one, and I have to confess I have the same feeling about Judge Juan Merchan’s contempt ruling on Tuesday, another bigger-than-life New York City celeb $9K for violating Merchan’s gag order several times. There’s another hearing on tap Thursday, over what elected progressive Democratic DA Alvin Bragg insists are four additional contemptuous incidents.
Don’t get me wrong — I think the gag order is over-the-top and have said so. (See, e.g., here and here.) It is an arrogant expression of a judge convinced that nothing — not even free expression and robust political speech in a presidential election — takes precedence over the administration of justice in the farcical ongoing trial. It is, moreover, the perpetuation of a partisan narrative that Trump’s bracing posts and insults, which don’t actually threaten anyone (otherwise Bragg would charge him), are dog-whistles summoning MAGA-world to execute the next Capitol riot — which is to be expected given that Merchan is an activist Democrat whose daughter is a Democratic political operative making lots of money working for Trump’s bitterest political rivals.
If Merchan were truly interested in the administration of justice, he could have postponed the trial until after the November election, at which point concerns about protecting witnesses and minimizing publicity that might influence the jury pool would clearly take precedence over Trump’s right to campaign and the public’s interest in uninhibited political speech. Instead, what the judge, Bragg, and other Democrats are interested in is getting Trump convicted during the campaign so Biden can call him a “convicted felon.” Ergo, we have a trial and we have a gag order, which prohibits Trump from speaking about Bragg’s witnesses even as they speak endlessly about him, and stifles Trump while his political rivals are allowed to say whatever they want about the prosecution.
To my mind, given the free-election interests at stake, Trump should be limited only by the strictures on free speech that limit everyone: If he incites lawlessness, willfully intimidates witnesses, or corruptly obstructs justice, he can and should be charged with a crime; if he defames someone, he can be sued — as E. Jean Carroll proved, that can be an expensive proposition; and if he says idiotic and/or patently false things, prosecutors can use them against him at his various trials. That, plus the fact that Trump’s diatribes remind the majority of voters in the country who oppose him why they oppose him, ought to be enough to get him to rein it in. If it’s not, that’s on him.
Beyond that, we’re down to theater.
For good reasons, Trump believes the New York case is rigged against him. Since it may be a year or three before he gets any convictions reversed on appeal, he has to fight the case as politics — as part of the campaign. So naturally, the ink was not dry on the contempt order before Trump was back at it, publicly bashing the judge and the process. For Trump, Merchan might end up being more of a rhetorical punching-bag than Bragg, Michael Cohen, et al. Trump calculates that if people become convinced that the judge was in the tank for Bragg, they won’t hold the “convicted felon” him. The trial may even end up being a political net-positive if voters are convinced that it says less about Trump than about the Democrats’ abuse of law-enforcement processes as political weapons.
Trump has a Scrooge streak, but he can afford a thousand bucks a pop for contempt citations. Moreover, parsed closely, Merchan’s contempt order seems measured and reasonable to me. Again, I’m thinking more about politics than law — legally, aside from my overarching objection to the gag order, I agree with my friend Jonathan Turley that the gag order is not tailored narrowly enough and that the reposting issue is more complicated than Merchan’s reasoning implies.
It seems obvious that Merchan is put off by the fact that witnesses protected by his gag order, particularly Cohen, have used it as a sword rather than the shield he intended — they figure they can attack Trump to their heart’s content while he can’t respond. Merchan knows that’s unfair, and he’s factoring it into his enforcement of the order.
That brings us to what ought to be the red line: the potential 30-day jail sentence — in addition to the $1K fine — for future violations. I have no doubt that Trump wants no part of even five minutes in the slammer, even in the company of his Secret Service team. Still, he is shrewd enough to know that if Merchan sentences him to a few days’ imprisonment, that would be a political catastrophe for Democrats. Merchan has to know that, too.
There are required steps in the kabuki. Merchan has to admonish Trump that a jail sentence is not out of the realm of possibility. Due process is served by putting the target of the order on notice of the maximum potential consequences, and meting out $1,000 fines to a billionaire is not serious enough to be regarded as a pinprick. But all that said, $1,000 fines should be the extent of it, because this is performance art not the administration of justice.
If I were Trump, I’d be ready to do a Reggie — maybe give Merchan $5K or $10K every Monday for the rest of the trial and then say whatever he insists on saying, subject to the potential sanctions that are real: prosecution, defamation, and use of his comments and social-media posts as evidence against him. Let’s keep it light theater and not put a former U.S. president and current presidential candidate in a holding pen over nonsense. Bragg’s case has already brought enough discredit on the justice system.