Election 2024: Contempt, I

I started drafting this post five days ago and am finally coming back to finish it…

The second week of testimony in the hush money trial, Trump v. New York, started Tuesday after a three-day weekend break. Before that began, Judge Merchan issued his ruling on the previous week’s hearing about Trump’s non-compliance with the gag order. Trump was found to have violated the gag order nine times, and hence was found in contempt of court.

The only levers available to Judge Merchan with respect to punishment for contempt of court are to fine Trump up to $1,000 per violation, or jail him. This time he went the fine route, but he noted that for this defendant the fine was clearly going to be ineffectual in terms of providing motivation to change behavior, and as such he left the door open for jail time if further violations occur.

And two days later, there would be a second hearing about four additional purported violations of the gag order. No ruling yet, but it will be interesting to see if Merchan plays the incarceration card this time or not.

The prosecution’s focus in the early days of the trial has been on telling a story about how Trump, his then-attorney Michael Cohen, and Trump’s good friend David Pecker formed a ‘conspiracy’ in 2015 to use Pecker’s publication, the National Enquirer, in a manner intended to influence the 2016 election in Trump’s favor. This led to the National Enquirer having paid $150,000 to Karen McDougal in August 2016 to obtain and then suppress her story about having had an affair with Trump. Pecker testified that he declined to have the National Enquirer purchase Stormy Daniels’ story in October 2016, and that refusal allegedly set off the chain of events whereby Cohen borrowed money from his HELOC to pay Daniels and then received repayment after the fact from Trump, disguised as payments for legal services.

The key question remains whether the prosecution can convince the jury that this “conspiracy to influence the election” was criminal. Quinta Jurecic wrote an article recently for Lawfare attempting to unpack the legal theory here. A key linchpin in the prosecution’s argument appears to be that both the National Enquirer’s payment to McDougal and Cohen’s payment to Daniels violated federal election law. Cohen has already pled guilty to the latter, and the National Enquirer had previously acknowledged the former in a non-prosecution agreement.

Important witnesses in the first two weeks of testimony have been Pecker, attorney Keith Davidson (who had represented both McDougal and Daniels), and – starting on Friday afternoon – former White House communications director Hope Hicks, who in her role as a campaign staffer had publicly denied the McDougal story when the Wall Street Journal broke it four days before the election. In order to forestall potential witness intimidation efforts by Trump, the order of prosecution witnesses has not been publicly disclosed, which has added a level of suspense to the trial coverage.

A second theme of “contempt” describes the attitude that many left-leaning pundits have towards SCOTUS in light of the oral argument in Trump vs. U.S. nine days ago; but at this point I’ll leave that for a follow-up post.