May 7, 2024 - Politics & Policy

Trump's threat of being jailed suddenly gets real

Former U.S. President Donald Trump attends his trial for allegedly covering up hush money payments at Manhattan Criminal Court on May 6, 2024 in New York City

Former President Trump at his New York criminal trial Monday in New York. Photo: Peter Foley-Pool/Getty Images

The idea that Donald Trump could land in jail for violating a gag order in his hush-money trial suddenly became real Monday.

  • Manhattan Judge Juan Merchan found Trump in contempt of court for a 10th time for criticizing jurors or court personnel, fined him $1,000 — and warned that more violations could land the ex-president behind bars.

Why it matters: That dramatic threat — "the last thing" Merchan said he wants to do — has set the stage for another precedent-shattering moment in the first criminal trial of a former president.

  • Any jail time for Trump, no matter how long, would have ripple effects through the trial, the 2024 presidential campaign, New York's corrections system and even Trump's Secret Service detail.

Zoom in: On Monday it was clear that Merchan was feeling the weight of all of that as he fined Trump for an April 22 diatribe in which Trump complained that the jury is "mostly all Democrat."

  • "You are the former president of the United States, and possibly the next president as well," Merchan told Trump in court.
  • "I do not want to impose a jail sanction and have done everything I can to avoid doing so. But I will if necessary."
  • Trump didn't respond in court, but afterward he suggested to reporters that he wasn't deterred by the threat of jail: "Our Constitution is much more important than jail ... I'll do that sacrifice any day."

Between the lines: Merchan's order — which raised Trump's total contempt fines to $10,000 — represents "a significant increase in the pressure," former New York federal prosecutor Mitchell Epner told Axios.

  • The length of any contempt jail sentence would be up to the judge — who also would determine where Trump would be sent.
  • It could be as short as a lunch hour in a cell at the Manhattan courthouse on a trial day. But any multiple-day sentence would make the notorious Rikers Island jail the most likely option, said Epner, who's now at Kudman Trachten Aloe Posner LLP.

As a former president Trump is protected by Secret Service, which is preparing for the possibility he could be jailed, the New York Times reports.

  • Guns usually aren't allowed inside jails, so the agents protecting Trump would require "some sort of special accommodation," said Martin Horn, a professor emeritus at John Jay College of Criminal Justice and former commissioner of New York City's Department of Probation.
  • If Trump were sent to Rikers, he most likely would be held in the West Facility, which has separate housing units with a small number of cells, Horn said.
  • "Each cell has an ... observation room attached to it and they're air-conditioned. That would be a place where the Secret Service could observe him ... (and keep him) separate from other prisoners."

What they're saying: "We study locations and develop comprehensive and layered protective models that incorporate state of the art technology, protective intelligence and advanced security tactics to safeguard our protectees," Anthony Guglielmi, chief of communications for the Secret Service, said in a statement.

  • "Beyond that, we do not comment on specific protective operations."

What to watch: Trump said before the trial it would be a "great honor" to go to jail for violating his gag order, which prohibits him from criticizing jurors, court personnel (except Merchan) and potential witnesses.

  • Trump's legal team has fought the order, arguing that it violates his freedom of speech. Trump lawyers asked a New York appeals court to delay the trial while he appealed the gag order, but the court denied the request.
  • "If Trump violates this for a third time, and after twice being warned, I think that that makes this pretty close to appeal-proof," Epner said, referring to potential appeals by Trump if Merchan sends him to jail.

Trump has cast himself as the victim of politically motivated prosecutors, a claim that some legal experts have doused with cold water.

  • Trump "tries to say he is being treated differently," George Grasso, a retired New York City judge and former senior city police official, told NBC News.
  • "He is being treated differently: He's being given more leeway than the average defendant."

The bottom line: "This is something that no state, local or federal corrections system has had to deal with," Horn said.

  • "Certainly New York City and New York State have dealt with high-profile prisoners ... but this is sui generis."

Go deeper: Trump's social media posts follow him to courthouse

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