For The Washington Post

ONE TIME USE ILLUSTRATION FOR OP-KAGAN ON THE TRUMP DICTATORSHIP

Supreme Court of the United States

Photographer

Election 2024 Trump

Election 2024 Pennsylvania

other

Hundreds gather for the Lost Voices of Fentanyl Rally in Washington, D.C.

The Washington Post

staff

South Korea Koreas Tensions

Three young women share coworking space, work side by side with desk dividers

Contributor

(iStock)

Student Protests Continue At George Washington University

Staff

Children holding hands

ONE TIME USE FOR OP-CARNEY KIDS 

HANDOUT on 8/23/18

Donald Trump

cartoon-pritchett-tradwives

Respond to prefers-color-scheme dark in app web views

Follow section front redirects in Spectrum

Enable NLP source in PCS for load testing

Switch off the News Alerts Survey Widget when we have enough responses

Poll to determine if new LUF updates are available

Allows the winning A/B test variant to be turned on without Spectrum deployment

Show infinite scrolling sections in Assembler MultiView

Show option for NLP article summaries in Action Bar

A general feature flag for Recipe Features that aren't yet released

Feature flag for media team features that aren't yet released

Use new Orca video player for preroll plugin in Spectrum

Show the snow tracker (instead of the heat tracker) on Spectrum

The New York Times, alone in its outrage over access to Biden

The ‘Access Hollywood’ video cemented Trump’s air of invincibility

Stephen A. Smith would like even more of your attention

Trump escalates attacks on prosecutors, says Democrats run ‘a Gestapo administration’

Top RNC lawyer resigns after rift grows with Trump

Divided Trump campaign weighs joining TikTok, the app he tried to ban

How Pope Francis opened the Vatican to transgender sex workers

Israeli cabinet votes to shut Al Jazeera’s Israel operations; cease-fire talks ongoing

Residents accuse Israeli forces of executions during West Bank raid

Strangers help Sesame Street puppeteer after heirloom necklace was stolen

Teen grabs wheel when driver passes out and school bus veers into traffic

Cat climbed into Amazon return box, found alive 630 miles away

Carolyn Hax: Working for a celebrity has this employee feeling ‘small’

Ask Amy: I live with my boyfriend – and his sister and her family

Miss Manners: Is it inappropriate to reach out to old girlfriends?

After years of delay, Boeing to try again with Starliner space capsule

Google’s empire is massive. A judge will soon rule if it’s a monopoly.

In photos: The 150th running of the Kentucky Derby

University of Michigan graduation disrupted by protesters

Protesters clash with law enforcement at U-Va.

The Post endorses April McClain Delaney and Tom Royals for Maryland’s 6th District

On Press Freedom Day, little to celebrate for Hong Kong’s journalists

Young Georgians want to be part of Europe. Their government is in the way.

A frank look at hot dog prices at MLB ballparks

Sloppy first inning dooms the Nationals in a 6-3 loss to the Blue Jays

In a pinch, the Nationals finally find some offense

The new cure-all for vacation excess: the IV drip 

What’s the best bus to New York? We tested 5 for comfort and value.

You asked: Do I need a passport for my cruise?

Jabin Botsford

By the time Justice <a href="https://www.washingtonpost.com/national-security/2023/03/31/trump-judge-merchan-indictment/" target="_blank" class="contextual_link">Juan Merchan</a> held Tuesday’s hearing in Donald Trump’s business records falsification case, the district attorney had accumulated 10 instances in which the four-times-indicted former president had violated the court’s order prohibiting him from threatening witnesses and jurors. The question was not really whether Trump had violated the gag order, but what, if anything, was Merchan going to do to protect jurors, witnesses and the integrity of the court.

Prosecutor Chris Conroy, arguing to hold Trump in contempt, reeled off the list of violations. He asserted that the hullabaloo Trump’s attacks set off had already resulted in the loss of one juror, who complained about the press feeding frenzy. Conroy asked for the statutory limit of $1,000 per offense. He also requested that Merchan order Trump to take down the offending posts and warn him that future violations could result in incarceration. The requested penalty was strikingly mild, given the magnitude and multiplicity of the violations.

Trump lawyer Todd Blanche repeatedly drew Merchan’s anger like few attorneys I have ever seen. “Justice Merchan has repeatedly pushed Todd Blanche to clarify his arguments, only to have Blanche deny that he is saying what he seems to be saying,” <a href="https://www.nytimes.com/live/2024/04/23/nyregion/trump-hush-money-trial-news" target=_blank>the New York Times recounted</a>. “Trump is very lucky that the jurors are not here for this. Merchan is really dressing down Blanche right now.” Merchan scolded Blanche at one point: “You’ve presented nothing.”

Merchan rejected Blanche’s argument that Trump’s post impugning the jury was simply a repost of an item by Fox News commentator Jesse Watters. “Your client manipulated what was said and put it in quotes,” Merchan said. As the argument wound down, Merchan blasted Blanche: “Mr. Blanche, you are losing all credibility.” It is one thing to lose a motion; it is quite another to alienate the judge so early in a trial.

Such exchanges encapsulate the impossibility of crafting arguments to excuse Trump’s indefensible actions without running afoul of the truth and infuriating the judge. The defense counsel cannot control their client. Instead, they perform for him, reciting ridiculous and easily refuted arguments. That may fly in MAGA politics, but it’s a disaster in the courtroom.

With so many discretionary calls left for Merchan to make, the defense counsel’s missteps — on everything from <a href="https://www.nbcnews.com/politics/donald-trump/special-counsel-rips-judges-jury-instructions-request-trump-classified-rcna146166" target=_blank>jury instructions</a> to objections to testimony — may damage their ability to persuade the judge on key issues. (The judge already upheld a surprising number of objections to Blanche’s opening statement, a rarity in criminal cases.) Since most of these decisions would be purely discretionary, adverse rulings would not provide Trump with grounds for appeal.

While the judge has yet to rule, few doubt he will side with the prosecution. The hard test will come when Trump, unable or unwilling to contain himself, acts up again. At that point, Merchan may decide to incarcerate him for a brief time, perhaps when the court is not in session so as not to unduly prejudice the jury. That said, there may come a time when Trump gets reprimanded in the presence of the jury — or is even removed for an extended incarceration. (His absence no doubt would be shocking to the jury.)

This sort of struggle with a recalcitrant defendant virtually never occurs. Most criminal defendants fear enraging the judge who possesses so much control over their fate. That a former president again seeking the job of chief executive — whose job it is to enforce the law — is repeatedly defying the court makes the situation all the more stunning. While Merchan’s slap-downs may not impress Trump followers, who continue to view him as a victim, less ardent Republicans and independents may begin to get queasy about electing someone with such disdain for the law.

Finally, Trump should be concerned about a very concrete ramification of his defiance of the court. <a href="https://codes.findlaw.com/ny/penal-law/pen-sect-65-05/#:~:text=(a)%20Except%20as%20otherwise%20required,the%20public%20interest%20nor%20the" target=_blank>Under New York law</a>, the defendant’s “history, character and condition” are relevant criteria. Refusal to follow the court’s orders, bullying of witnesses and jurors, and contempt for the judiciary as a whole would almost certainly weigh against him.

Trump might avoid incarceration for now, but his open and persistent defiance of the court may land him briefly behind bars before the trial is out <b>— </b>or, worse, for an extended time after conviction.

University of California at Berkeley, BA in history

University of California at Berkeley, JD

Jennifer Rubin writes reported opinion for The Washington Post. She is the author of “Resistance: How Women Saved Democracy from Donald Trump” and is host of the podcast Jen Rubin's "Green Room."

Jennifer Rubin

washpost

In New York case, it’s time Merchan held Trump in contempt

the-washington-post

Trump Manhattan criminal court

Editorials

Columns

Guest opinions

Cartoons

Submit a guest opinion

Today's Opinions newsletter

Opinions

Sign up for the Prompt 2024 newsletter for opinions on the biggest questions in politics

Washington Post Opinions

The Washington Post Opinions section features opinion articles, op-eds, editorials by the Editorial Board, global opinions and letters to the editor on the issues of the day. Offerings include columns by Washington Post opinion writers, political cartoons by editorial cartoonists Ann Telnaes and Michael de Adder and podcasts by Jonathan Capehart.