After Donald Trump used the occasion of Acting Manhattan state Supreme Court Justice Juan Merchan’s gag order in the hush money criminal case to smear the judge’s own daughter, Merchan expanded it to include the families of himself, DA Alvin Bragg, prosecutors, witnesses and court staff.
If and when Trump violates it (as he is always inclined to do), what should come are serious and proportionate repercussions — not small fines Trump can fundraise for, but further restrictions, including a stay in jail.
Trump should face the same consequences that everyone else does for violating a court order. Either there are real, punitive steps that can be taken to punish Trump for his contempt of court, or we have to accept that there aren’t, and in that case we might as well scrap the American experiment of equal justice under law altogether.
There are always reasons not to do something. Will Trump respond to attempts to fine or jail him by ginning up his fundraising? Probably. Will it help him politically in his quest to return to the White House? He would love to portray himself as a political prisoner. Is this unprecedented? Much of our current moment is, and dealing with the unpredictable is the entire point of governing systems. If everything was smooth and predictable, there’d be no need to have a constitutional order at all.
None of these are reasons not to impose sanctions on Trump, a decision that must be rooted in the law and the principles of justice and proportionality. We can say that there are significant downsides to the failure to hold him to account, to raise the specter of penalties and then not follow through.
We know this because we’re living in the world created by these failures. At every step of the way, institutions that could have stepped in and made clear to Trump that there were limits that could not be pushed by bluster and threat have given him a pass, letting him go just a bit farther. His creditors let him coast, the authorities didn’t step in as he ran his business through grift and fraud, the mainstream GOP felt they could keep him around as a useful idiot, the Senate failed to convict during his second impeachment and opened the door for him to run again.
If there’s one long-standing power Trump — who is not particularly hard-working, poorly read and singularly selfish and unkind — has had, it’s a kind of veneer of impermeability that only a youth of money and bullying could generate. He thrives not in spite of but partly because he is constantly breaking norms, laws, regulations and standards of basic decency, daring anyone to intervene. Whenever someone doesn’t, it just reinforces that he can do it again, do it bigger.
Does Trump seem empowered by the verdicts in the civil fraud and E. Jean Carroll defamation cases? Does he seem better off for having been put on the hook for hundreds of millions of dollars, for being made to sit in a courtroom as judges and lawyers discussed his transgressions? No, the idea that he can only benefit from consequences is a fiction he has an interest in maintaining. If he violates the order, it should hurt.
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