4 Ways Judge Merchan Could Punish Donald Trump for Gag Order Violation

On Monday, Judge Juan Merchan, who is presiding over the former president's Stormy Daniels hush money trial in Manhattan, ordered him to pay an additional $1,000 fine after concluding he had violated a gag order imposed on the case for the tenth time.

Merchan also warned Trump that if the violations continue "this court will have to consider a jail sanction," though he noted the defendant is the former and potentially future U.S. president and said incarceration "would be disruptive to the proceedings."

Trump is on trial for 34 counts of falsifying business records relating to claims he orchestrated the payment of $130,000 in hush money to Stormy Daniels, a former adult film actress, ahead of the 2016 presidential election to cover up an alleged affair. The former president has pleaded not guilty to all charges and denies Daniels's claim that they had a sexual relationship in 2006.

Newsweek spoke to Jamie White, the founding attorney of White Law PLLC, and V. James DeSimone, a lawyer who created V. James DeSimone Law, about what penalties Trump could face if he continues violating the gag order.

When combined with a suggestion made in The New York Times by writer Jonathan Alter, four potential future punishments for Trump were identified if the gag order keeps being broken. Under the gag order imposed by Merchan, Trump is prohibited from attacking witnesses or jurors involved in the trial.

Newsweek reached out to Trump's attorney, Todd Blanche, and representatives of Trump's 2024 presidential campaign via email at 8 a.m. ET. This article will be updated if they decide to comment.

Additional Fines

Merchan could punish any future breaches by issuing additional $1,000 fines, though both White and DeSimone told Newsweek this is unlikely to be effective.

"Judge Merchan should rein in Trump because he needs to protect witnesses, jurors and the integrity of the proceedings in his court. But he has a very limited set of options," White said.

"He can continue to issue fines. But he cannot inflate the value of the fines based on Trump's personal wealth. The United States judicial system has a long history of imposing uniform fines that don't take into account a defendant's financial status, and it would be difficult for Merchan to depart from tradition and precedent in that regard."

DeSimone made a similar point regarding fines: "Trump's at $10,000 and counting, so maybe Trump's looking at it as the cost of doing business, and this obviously pales in comparison to his other civil liabilities in the tens and hundreds of millions of dollars."

Imprisonment

Both White and DeSimone agreed that sending Trump to jail for further gag order violations would be risky for Merchan and could inflame the former president's support base.

DeSimone said that the publicity Trump would receive "by transforming himself into a free speech martyr, especially if he goes to jail, could help carry him into the White House."

He added that "no matter how badly people may want to see Trump behind bars, the judge has to think of the effect that might have on the nation."

Referring to Merchan, White said: "He would absolutely be on solid legal ground if he were to send Trump to jail overnight for contempt of court. He threatened to do that and he will need to follow through if Trump continues to make disparaging comments about witnesses or jurors.

"However, it seems Trump may relish the chance to spend a night in jail because he knows it will only whip up his most hardcore followers and win him victim points with some independent voters.

"Trump knows that any time he spends in jail will not be as difficult for him as for any other criminal defendant because he will have Secret Service protection and jail officials bending over backwards to protect him from any danger or indignity."

As an alternative, White suggested Merchan could delay jailing Trump for any further gag order violations until the verdict is reached but warned this doesn't solve all the problems.

"Merchan, to defuse the controversy over sending Trump to jail for contempt of court, may choose to wait until after a verdict is reached in the case and then jail Trump for contempt of court," he said.

"He could announce in court his determination to send Trump to jail but say that he is going to defer the imposition of the brief jail term so that the proceedings can continue without any delay or distraction.

"But that option is not a fail-safe solution. If January 6 taught us anything, it's that Trump's supporters will not hesitate to resort to violence to protect him. So, setting an approximate date for when he would be jailed would give them time to protest and to potentially stage some sort of riot or attack, which would create a big security headache for police in New York.

"It also would reflect badly on Merchan if a jury acquits Trump but he goes ahead and jails him for contempt of court. It could look like the judge was imposing a punishment as a form of reprisal."

House Arrest

White suggested one alternative to jailing Trump for further infractions would be for Merchan to place him under house arrest.

"Security considerations make it extremely impractical to lock up the former president of the United States. Putting the former president of the United States in Rikers Island is a terrible option. It would require just about shutting down the facility to keep him safe," he said.

"New York City corrections officials would have a lot of practical concerns if Judge Merchan ordered Trump to spend time in lockup, and I'm sure the judge is taking all that into consideration.

"In other countries, high-profile political figures have been placed under house arrest, which could be an option for Judge Merchan to consider. Whether that's the option he ends up choosing is another matter."

Community Service

In an opinion piece published by The New York Times, author and columnist Jonathan Alter suggested Trump should be ordered to complete community service if he again violates the gag order, which he said judges have instructed defendants to do in previous cases.

He wrote: "If Trump again attacks witnesses or the jury, Merchan should assign him to pick up trash in parks on two or three Wednesdays, when court is not in session. (City judges have done this before to contempt offenders.) Parks could be more easily secured by the Secret Service than roads, and that would spare the agents uncomfortable nights outside his cell."