You Don’t Want to Know How It’s Going Between Trump’s Lawyers and the Judge Presiding Over His Criminal Case
Read our ongoing coverage of Donald Trump’s first criminal trial here.
It’s only the second full day of Donald Trump’s criminal trial in New York and Justice Juan Merchan already appeared ready to hold the former president in violation of a pretrial gag order and to fine him up to $10,000 for contempt of court. As of Tuesday afternoon, the judge had yet to rule, but following Tuesday’s brutal hearing for the defense, it seemed only a matter of time. Merchan, seemingly very unhappy with Trump’s defense team, is ready to lay down sanctions to try to restore some order.
What’s this particular side show all about? Prosecutors say that on the eve of the trial (two weeks ago, before jury selection began), Trump sent out three Truth Social posts in violation of the gag order, which bars the former president from posting about jurors or from posting about witnesses in a way that could reasonably be expected to result in threats against them. He sent six additional posts on Truth Social and his campaign site targeting witnesses—and one targeting jurors—while proceedings were already underway last week. District Attorney Alvin Bragg’s office asked for a fine of $1,000 per violation, and Merchan appeared all too ready to accede to the request, though he held off on Tuesday, apparently to write a formal opinion. Prosecutors also want Trump to be warned that “incarceration is an option should it be necessary.”
“We are not yet seeking an incarceratory penalty,” prosecutor Christopher Conroy said in court on Tuesday morning, before acknowledging that the “defendant seems to be angling for that.”
As ever with Donald Trump, the former president knows how to put on a show, which is presumably why he might like to be jailed during this trial—what else could further rile up his base?
Back in the actual courtroom, Trump’s team seemed totally unprepared to defend any of his postings at the hearing, even though it had been scheduled a full week ago. Maybe they too want their client to end up in jail—Trump’s infamous lack of self-restraint seems like a road toward more of these kinds of posts and even a Manhattan jail cell.
While presenting the violations, Conroy, from the district attorney’s office, also alleged that Trump violated the order again as recently as Monday while speaking to hall reporters just outside the courtroom—he criticized Michael Cohen following the defense’s opening argument.
“The defendant violated the order again on camera. He did it right here in the hallway outside,” Conroy argued.
The defense’s principal defense of Trump’s posts was that the gag order carved out an exception for Trump to respond to political attacks, which is all Trump did, they say, when he targeted witnesses Stormy Daniels and Michael Cohen.
For the prosecution, Conroy did not agree that Trump was merely responding to political criticisms. “I’m not sure how there could be a straight-faced argument” that Trump’s posts weren’t related to the trial, he said.
Merchan appeared to agree with the prosecution on this point, responding to Todd Blanche with both bemusement and agitation as Trump’s attorney repeatedly interrupted the judge and failed to respond to his direct questions.
Things started badly for Blanche and never got any better. He tried to defend Trump’s decision to quote former Daniels attorney Michael Avenatti, arguing that Trump was merely responding to a Cohen suggestion that Avenatti wants a pardon from Trump during a second term, should he win the election. (Avenatti is currently serving 19 years in prison for extortion and stealing from clients.)
“Your position was that what makes this political is the reference to being pardoned?” asked Merchan, already exasperated. When Blanche persisted in this line of reasoning, Merchan continued: “The use of the word ‘pardon’ is sufficient to allow your client to violate a gag order?” Blanche failed to directly answer.
Merchan also tried to pin down Blanche on the specific timing of Trump’s Truth Social posts. At one point Merchan noted that one post came almost immediately after Merchan’s gag order was upheld, and asked whether this was a coincidence.
“The timing is just the timing,” Blanche said, unresponsively. “President Trump Truths repeatedly all day, virtually seven days a week.”
The use of “Truth” as a verb aside, this is as accurate as it is becoming legally problematic for the former president. But it won him no points with the judge.
Blanche’s most credible moments came, ironically, when he conceded that his client had lied in one of these posts. This happened when Blanche was answering questions about a Trump post that claimed he had “just found” a statement by Daniels denying the sexual affair at the center of the case.
“This was six years ago,” the judge noted of the Daniels statement in question. “It says ‘look at what was just found,’ ” Merchan continued. “Was it just found?”
“No,” Blanche responded.
“So, that’s not true?” the judge continued.
“That’s not true,” Blanche said.
It continued like this, resulting in a few situations in which it sounded like Trump’s lawyer and the judge in the case were simply bickering.
“That’s absolutely not what I’m saying,” Blanche said at one point.
“No, it is what you’re saying,” Merchan retorted.
Another example of a back-and-forth: “You didn’t answer me,” Merchan told Blanche. “I did answer you,” Blanche countered. During one interruption, Merchan cut Blanche off. “I’m asking the questions,” the judge said.
At a certain point, Merchan noted that Blanche’s entire argument—specifically that Trump believed in good faith that he was not violating the gag order when he made these posts—was moot because Trump himself has not testified to that effect. “You want me to accept it just because you’re saying it?” Merchan asked Blanche.
“You’re asking to put President Trump on the stand?” Blanche responded.
This was precisely Merchan’s point: Blanche had nothing, not even Trump’s own assurance, to back up his claims.
After a good 30-plus minutes of this, Merchan said that they had to move the day on to witness testimony and ended arguments.
Trump’s lack of credibility and his unwillingness to take the stand were at the center of the entire contempt proceeding. It placed an enormous burden on his attorney—and Blanche did not handle that pressure well. Some observers left saying they actually felt pity for Trump’s counsel.
The inherent absurd comedy of these exchanges aside, this is serious stuff. The most egregious Trump post was something the former president put on Truth Social last week after the first two days of jury selection. In it, he went after jurors, which is just about the biggest no-no in the U.S. court system, even if you don’t have millions of rabid fans, some of whom have already demonstrated their willingness to commit crimes at your behest.
The concerns about witness intimidation are very real. Multiple jurors backed out at the last possible moment prior to being seated, and one even did so after being seated. Another juror tried to back out on Monday and was apparently convinced to stay on. Each of the past two days I’ve been in the court, jurors have tended to stare straight ahead without looking at Trump, even though they enter and exit the courtroom by walking right by him. How could they not be intimidated by a man who holds the loudest platform in the country and is willing to use it?
We may soon find out if anything—even the threat of jail—can shut Donald Trump up.