Judge’s warning provides dilemma for Trump over whether he will risk jail for a political point

Analysis by Stephen Collinson, CNN

(CNN) — Donald Trump and the judge presiding over his hush money trial are staring each other down with profound implications for the former president, the coming election and the rule of law in the United States.

Juan Merchan is now closer than any judge in American history to putting an ex-president behind bars after laying down a red line he says he may have no choice but to enforce if Trump does not start obeying the rules.

Merchan on Monday found Trump had yet again violated a gag order that precludes attacks on witnesses, the jury and others, days after he fined him $1,000 each for nine previous transgressions. But he noted that the defendant wasn’t getting the message and warned he would have to escalate if necessary and appropriate in the future, as much as he sees the option as a “last resort.”

“Mr. Trump, it’s important to understand that the last thing I want to do is to put you in jail,” Merchan said in a surreal moment on Monday morning, directly addressing the presumptive GOP nominee and fining the billionaire defendant another $1,000 over comments about jury selection while clearing him of three other prosecution claims of gag order violations.

The judge’s admonition to Trump, who was seated at the defense table in court, represented an extraordinary reversal of a power dynamic for a former president – a member of an exclusive club that draws ubiquitous deference for life. Trump may be the most famous man in the world and dominate every room he enters, but Merchan is trying to send a message that, in his court, he is the sole source of authority.

But his warning also came across almost as a plea for Trump to desist from the kind of behavior that would force the judge to make his own fateful decision for which he would always be remembered. But he also left the impression that he could not allow the court – or the jury serving in a highly sensitive trial at a moment of extreme political turmoil – to come under attack.

“At the end of the day, I have a job and part of that job is to protect the dignity of the judicial system and compel respect,” Merchan went on. “Your continued violations of this Court’s lawful Order threaten to interfere with the administration of justice in constant attacks, which constitute a direct attack on the rule of law.”

“I cannot allow that to continue.”

The judge’s words put him in a box. If Trump ignores his warning and continues to violate his order, his credibility and his capacity to control his own courtroom mean he may have no choice but to escalate.

His warning also presented the former president – who has weaponized his four criminal indictments into a narrative of political martyrdom – with his own dilemma. Is he willing to test the judge and to continue railing about the jury and witnesses and risk jail – perhaps to bolster a claim of persecution that is the foundation of his bid for a new term? Or will he simply stop just before the line, in a rare example of bowing to an adversary who tried to temper his behavior.

Elie Honig, a CNN senior legal expert, said that he still believed it was unlikely Trump would end up jailed for contempt of court. But he added: “I think the judge has put down a marker. The judge has given Trump every benefit of the doubt when it comes to the gag order.” Indeed, it’s hard to imagine any other criminal defendant enjoying similar latitude from a judge over incessant attacks on the integrity of the trial, the court and the legal system.

The timing of the judge’s warning was significant because several moments of maximum stress are approaching for Trump with testimony expected soon from his former lawyer Michael Cohen and former adult film star Stormy Daniels.

Jack O’Donnell, former president and chief operating officer of Trump Plaza Hotel and Casino, questioned whether Trump would be able to maintain control – especially in his late-night social media posts. And he told CNN’s Erin Burnett: “The bigger question is whether he will purposely violate the order, and I think there is a very good chance that he will just test the limits because that is part of Trump’s DNA.” O’Donnell added: “I think there is a piece inside of him that he wants to dare this man to put him in jail.”

How would the legal system deal with a custodial sentence for Trump?

Monday’s turn of events set off speculation about how any custodial sanction would be enacted. This is a hugely complicated question given Trump’s identity and unique security requirements as a former president under 24-hour Secret Service protection.

After court on Monday, Trump railed against Merchan’s new rebukes, but he noticeably seemed to stop short of testing the gag order in a possible sign he was considering his strategy. This was consistent with his more careful behavior since Merchan’s initial findings of contempt last week.

“I have to watch every word I tell you people. You ask me a question, a simple question, I’d like to give it but I can’t talk about it because this judge has given me a gag order and said you’ll go to jail if you violate it,” Trump told reporters before raising the stakes for his own future conduct. “Frankly, you know what, our Constitution is much more important than jail, it’s not even close. I’ll do that sacrifice any day.”

As with his previous offers in multiple cases to testify that are often not borne out,  it was not clear if Trump’s words were bravado for political effect or a considered position.

There are few signs that the trial, over whether Trump falsified business records in paying a hush money payment to hide an alleged affair with Daniels before the 2016 election, has captured the national imagination or is doing much to change Trump’s neck-and-neck fight for the White House with President Joe Biden. Trump has denied the affair and pleaded not guilty. But the shocking development of an ex-president being detained by Merchan, even for a few hours – a possibility within his discretion under the law – would represent an extraordinary twist to Trump’s already norm-shattering political career and could have unpredictable political consequences.

Trump’s repeated use of dramatic moments related to his four criminal indictments to galvanize support and political contributions – for instance, when he had his mug shot taken in a notorious Atlanta jail in connection with a Georgia election interference case – means the possibility that he could test Merchan’s resolve, either deliberately or in a fit of rage, cannot be ruled out.

A courtroom exchange that sums up Trump’s entire threat to the legal system

The brief episode between Merchan and Trump on Monday epitomized in just a few sentences the unprecedented circumstances of the first trial of an ex-president, the collision between Trump’s criminal trials and the 2024 election, and the broader implications of the former president’s assault on institutions that hold him to account but often face corrosive consequences for doing so.

The encounter was also a graphic personification of the principle that everyone – even former presidents – is subject to the same treatment under the law and must obey the same rules to protect the integrity of the legal process. With his daily fulmination to the media outside the courtroom – and his searing social media posts, Trump has shown he’s got little respect for such judicial niceties. And his refusal to accept defeat in the 2020 election and false claims of fraud show his contempt for the rule of law more generally.

The judge’s comments also included a rare admission of the political context of a trial that is taking place six months before the general election and that is keeping the former president in court four days per week until it ends.

He told Trump: “You are the former president of the United States and possibly the next president, as well. There are many reasons why incarceration is truly a last resort for me.” The judge mentioned the disruption such a step would cause to the case itself – with the prosecution predicting two more weeks of testimony – and the impact that carrying out a custodial sanction would have on those required to execute it.

There are many possible reasons why voters may not be moved by this first trial of a former president. Much of the testimony so far has been technical and hard to follow. On Monday for example, prosecutors took former Trump employees through complicated financial transactions to lay a paper trail for future testimony from higher-profile witnesses. The trial is also not televised, meaning that its capacity to penetrate popular culture is limited. And some legal experts view the hush money trial as far less grave than Trump’s two election interference trials and one over his hoarding of classified documents, which appear unlikely to take place before the election.

But that could change if Merchan were to send Trump to a cell under the courthouse in Manhattan or to an isolated room for even a few hours of confinement.

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