Manhattan prosecutors keep objecting to Donald Trump’s alleged gag order violations, but they still don’t want him to go to jail over them. And while that is understandable from a practical perspective, it raises the question of why they keep pressing the issue.

Assistant District Attorney Christopher Conroy told Judge Juan Merchan on Thursday morning that the office isn’t seeking jail time “yet” because it prefers to minimize disruptions to the proceeding. Conroy made the remark at a hearing over the latest alleged violations of the gag order.

Merchan already found Trump in contempt on Tuesday for violating the order nine times. The judge imposed a $1,000 fine for each violation — the legal maximum. Even Merchan effectively conceded the punishment was relatively minor, but in his ruling Tuesday, he warned Trump that he could send him to jail if he keeps testing the limit.

Ahead of Thursday’s hearing over additional alleged violations, I wrote that fines might be all that come out of this latest hearing, too. That’s because Merchan’s jail warning in Tuesday’s ruling might be read to apply only to violations that come after that ruling, and the alleged violations at issue in Thursday’s hearing happened earlier. There’s no legal bar to Merchan jailing Trump over these latest alleged violations — he could’ve done so with the nine violations in Tuesday’s ruling — because state law gives him the option of fines up to $1,000 and/or jail up to 30 days.

Trump didn’t need any special warning, but Merchan gave him another one anyway, probably to delay the momentous decision of whether to jail a former president and presumptive presidential nominee. 

But with the state’s latest concession Thursday, Merchan may not have to truly grapple yet with whether to send Trump to jail, since even prosecutors say they don’t want that yet. That is, if the judge even finds any violations over the latest contested statements about witnesses Michael Cohen and David Pecker and the jury. Merchan didn’t immediately rule Thursday, as testimony resumed in the criminal case charging Trump with falsifying business records. (Trump has pleaded not guilty.) 

Recommended

Deadline: Legal Blog

Federal judge warns Trump DOJ of sanctions, contempt for rule violations in Mangione case

Jordan Rubin

Deadline: Legal Blog

Jeanine Pirro’s office fails three times to convince grand jurors to return indictment

Jordan Rubin

Let’s assume Merchan only imposes fines again if he finds further violations. What does the prosecution’s position mean for the additional violations by Trump that will almost surely come? Prosecutors said they’re not seeking jail yet, implying there may come a point when they will. And by their logic, jailing Trump risks disrupting the trial. Maybe so. 

But that raises the question of the purpose of the gag order in the first place. It’s to protect the proceedings, by stopping Trump from going after witnesses, jurors and others involved in the case (he can still rail against the judge and Manhattan District Attorney Alvin Bragg himself). The prosecution seems to think that’s an important interest to protect because they keep raising it with Merchan. But if Trump keeps violating the order in the face of $1,000 fines, it’s clear that the order isn’t serving its purpose.

Prosecutors likely don’t want to risk messing up the underlying case itself, which seems to be moving along well for them. And jailing Trump would raise unprecedented issues, at least from a practical perspective. But if they’re confronted with further violations, they’ll have to weigh the risks of Trump’s disruption to the proceedings against whatever disruption holding him accountable for that would bring. Ultimately, the weighty decision will fall to Merchan, who had to know that he’d be faced with such a decision when he imposed the order in the first place.

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.