Judge Merchan Is Out of Good Options

In April, when Judge Juan Merchan first heard arguments about whether Donald Trump was violating a gag order in his criminal case in Manhattan, he sharply and skeptically questioned the former president’s attorneys, accusing one of “losing all credibility.” When he found Trump in contempt last week, he did so in a detailed, impassioned ruling that defended his gag order and the need for political speech.

The second time around, things were less tense. Merchan was far more relaxed during a contempt hearing last week. His ruling today found Trump in contempt on only one of the four counts prosecutors claimed, and his written decision was shorter and drier. He fined Trump $1,000, adding to a $9,000 penalty levied last week.

In the courtroom this morning, Merchan was blunt, explicitly threatening to imprison Trump if he won’t stop. “Going forward, this court will have to consider a jail sanction,” he said. “Mr. Trump, it’s important you understand, the last thing I want to do is put you in jail.”

[David A. Graham: Trump’s contempt knows no bounds]

But, Merchan said, he has an obligation to “protect the dignity of the justice system,” adding: “The magnitude of this decision is not lost on me, but at the end of the day I have a job to do. So as much as I don’t want to impose a jail sanction,” he said, “I want you to understand that I will if necessary and appropriate.”

The pairing of Merchan’s somewhat perfunctory ruling today with his previous, more emotional courtroom delivery reveals the difficult situation that Merchan faces. He must choose between exercising a power he doesn’t want to exercise, and rendering himself powerless.

Knowing Trump’s true mind is impossible, and some of the reporters best-sourced in his camp say he doesn’t want to be sent to jail. But the former president is behaving like a man who has calculated that getting thrown in the clink for a night or two for the offense of posting some mean things on Truth Social would be great publicity.

[David A. Graham: Trump’s naps are actually worrying]

Even worse for Merchan, that might be right. Trump’s legal defense in the trial seems to be a bit shaky. The overarching strategy seems to be to sow doubts about little parts of the prosecution’s story, rather than mounting some counternarrative. The defendant has reportedly been grumbling that his lawyers are not aggressive enough, while they keep running afoul of Merchan.

But Trump has always been more interested in the political defense, in which he has a clear counternarrative: He says that the big bad justice system, run by Democrats, is out to get him and interfere with the election in order to hurt him. (The irony is that this master of projection sits accused of election interference in the Manhattan trial.) And what could show that better than the outlandish penalty of jail for off-brand tweets? That might not convince any skeptics, but it could rile up his base.

Yet, as Merchan said, he can’t just let the attacks go. Trump has made his various trials into a test of the principle of equal justice under the law, arguing that he should not face accountability for his own actions. Merchan called Trump’s defiance “a direct attack on the rule of law,” and though the scale is much smaller than the immunity case at the Supreme Court last month, he’s right: Any other defendant who repeatedly violated an order from a judge would expect to face escalating sanctions. Merchan may have little interest in defending expected witness Michael Cohen, whose inability to stay quiet he called out in his previous ruling, but he really does need to defend the jury and other witnesses from intimidation—to say nothing of his need to enforce his own orders.

[Read: The infantilization of the president]

The result is something like watching a parent ineffectually scold a toddler. (This is not the first time that Trump has warranted that comparison, in many cases from his own aides.)

Maybe this time the judge’s warning will get through and Trump will rein himself in. “He’s now sitting quietly, frowning, still seemingly absorbing that message from the judge,” The New York Times reported, noting that this is far more restrained than his reaction when the federal judge in his defamation trial threatened jail. Then again, his campaign today called Merchan’s threat a “Third World authoritarian tactic.”

One other notable observer doesn’t think the threat will work. “Because this is now the tenth time that this Court has found Defendant in criminal contempt, spanning three separate motions, it is apparent that monetary fines have not, and will not, suffice to deter Defendant from violating this Court’s lawful orders,” he wrote. That observer was Merchan himself in today’s decision.