There’s much to say about Judge Juan Merchan’s latest decision to hold Donald Trump in contempt. On Monday, the judge found that the defendant had violated a gag order in his New York criminal case for the 10th time.
Of course, there’s the obvious takeaway that a typical defendant would’ve been jailed by now instead of just fined. The former president and presumptive GOP presidential nominee, on the other hand, has paradoxically been held to a lower standard. Merchan threatened jail for further violations, which isn’t so much a threat as a statement that the judge is willing to impose a penalty authorized by law.
But Merchan’s ruling is the latest one immediately favoring the defense that may benefit the prosecution in the long run. Recall that prosecutors had asked Merchan last week to find that Trump had violated the gag order four more times. The judge agreed on one of the allegations, regarding a Trump statement about the jury; Merchan said the remarks raised concern about the safety of jurors and their loved ones. The judge declined to hold Trump in contempt for statements about key witnesses Michael Cohen and David Pecker.
Indeed, Monday’s gag order ruling is the latest instance of Merchan not giving the prosecution everything it has asked for. On Friday, prosecutors argued that they should be able to cross-examine Trump on his then-most-recent gag order violations if he testifies. The defense argued that it would be unfair to bring that up in front of the jury. Merchan agreed, reasoning that it would be hard for the jury to look past the fact that the same judge presiding over the case had held Trump in contempt.
So these two rulings are the most recent evidence that this isn’t the witch hunt Trump paints it as.
So these two rulings are the most recent evidence that this isn’t the witch hunt Trump paints it as. Followers of these proceedings and of Trump’s rhetoric knew that already.
But this is more than a rhetorical point for the court of public opinion. Rather, or additionally, Merchan has built a body of difference-splitting rulings that would be harder for Trump to challenge on appeal if he’s convicted of falsifying business records (he has pleaded not guilty). If, as they hope, prosecutors are in the position of defending Trump’s convictions on appeal, then they may look back approvingly on Merchan not going as far as they wanted him to at certain points. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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