Contempt hearing puts renewed focus on Trump's rhetoric about witnesses, jurors in hush money trial

The judge warned Trump could be incarcerated if he violates the gag order again.

May 2, 2024, 5:13 AM

The focus of Donald Trump's criminal hush money trial is expected to shift Thursday morning from what witnesses are saying in the courtroom to what the former president has said when he leaves.

Two days after Judge Juan Merchan held Trump in criminal contempt for nine violations of the limited gag order that prohibits statements about witnesses and others involved in the case, the judge is holding a hearing Thursday to determine whether to hold Trump in contempt again and fine him $4,000 for making four additional out-of-court statements about the jury and known witnesses in the trial.

Merchan on Tuesday fined the former president $1,000 for each of the nine violations -- the maximum allowable fine under state law -- and threatened that future violations could result in jail time.

Trump is on trial for allegedly falsifying business records to hide the reimbursement of a hush money payment his then-attorney Michael Cohen made to adult film actress Stormy Daniels in order to boost his electoral prospects in the 2016 presidential election. The former president has denied all wrongdoing.

The four additional alleged gag order violations include statements about Cohen, the jury, and former National Enquirer publisher David Pecker, who testified across four days last week.

"That jury was picked so fast -- 95% Democrats. The area's mostly all Democrat. You think of it as a -- just a purely Democrat area," Trump told Real America's Voice last Monday in an interview that prosecutors say violated the gag order.

While the nine earlier statements were posted to Trump's social media account or campaign website, the four additional alleged violations occurred during Trump's remarks to the media, including one alleged violation that took place steps from the courtroom itself.

PHOTO: Former President Donald Trump sits in the courtroom at Manhattan criminal court in New York, April 26, 2024.
Former President Donald Trump sits in the courtroom at Manhattan criminal court in New York, April 26, 2024.
Curtis Means/Pool via Reuters

"And when are they going to look at all the lies that Cohen did in the last trial? He got caught lying in the last trial. So he got caught lying, pure lying. And when are they going to look at that?" Trump told reporters in the hallway outside the courtroom last week after opening statements in the case.

Prosecutors also pointed to an interview Trump gave to ABC station WPVI last week where he referenced both Pecker and Cohen.

"Well, Michael Cohen is a convicted liar and he's got no credibility whatsoever," Trump said. "David Pecker, I don't know exactly what he's going to be testifying against but or about, but he'll be testifying today."

The hearing shines a renewed light on Trump's rhetoric during the trial where, whether sitting in a courtroom or on the campaign trail, the former president is always just steps away from a live camera to transmit his message. Prosecutors have argued that Trump's statements about witnesses like Pecker amount to subtle yet unmistakable messaging to participants in the case.

"He's been very nice. I mean, he's been -- David's been very nice. A nice guy," Trump told reporters last Thursday morning while visiting a construction site in Midtown Manhattan.

"This is a message to Pecker: Be nice," prosecutor Christopher Conroy told Judge Merchan last week. "It's a message to others: I have a platform, and I will talk about you and I can say things like this, or things like what I said about Cohen. It's a message to everyone involved in this proceeding, including this Court."

The hearing also highlights the unique challenge Judge Merchan faces with a defendant who is a leading presidential candidate -- as well as being rich. In his order earlier this week, the judge threatened to jail the former president over future violations if the financial penalties didn't deter his behavior.

"It would be preferable if the court could impose a fine more commensurate with the wealth of the contemnor," Merchan wrote, suggesting a fine as high as $150,000. "Because this court is not cloaked with such discretion, it must therefore consider whether in some instances, jail may be a necessary punishment."

Prosecutors, for their part, have suggested that Trump -- who has compared himself to a "modern day Nelson Mandela" -- might actually be aiming for incarceration.

"We are not yet seeking an incarceratory penalty," Conroy said last week. "The defendant seems to be angling for that."

Officials with the U.S. Secret Service have held meetings and started planning for what to do if Merchan opts to send Trump to short-term confinement, sources familiar with the matter told ABC News last week.

Trump's lawyers have defended Trump's statements by arguing they were not willful violations of the gag order, suggesting Trump was responding to attacks from Cohen and others and making political statements. Merchan appeared to acknowledge that defense, writing in his order that witnesses should not use the gag order as "sword instead of a shield" by encouraging Trump's attacks.

"The underlying purpose of the restriction on extrajudicial statements is to protect the integrity of these proceedings by shielding those fearful of reprisal by the Defendant so they may take part in these proceedings without concern," Merchan wrote. "However, if a protected party turns that underlying purpose on its head, it becomes apparent that the protected party likely does not need to be protected by the Expanded Order."

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