Any day now, Judge Juan M. Merchan, who is presiding over Donald Trump’s criminal trial for concealing hush money payments made to prevent Trump’s affairs from being exposed before the 2016 election, is expected to rule on whether Trump should be found in contempt of court for violating his previously-issued gag order. Trump should be found in contempt, and if he is, he should face the same consequences as any other criminal defendant, including monetary sanctions or brief imprisonment. Any decision to the contrary would risk conveying to the public—and to Trump—the message that Trump is different from everyone else. But Trump is not above the law.

On April 15, 2024, the New York County District Attorney Alvin Bragg asked Judge Merchan to sanction former president turned criminal defendant Donald Trump, and find Trump in contempt of court for violating his previously-issued gag order on ten separate occasions. Specifically, DA Bragg alleged that Trump violated the March 26, 2024 order by making, or otherwise directing others to make, “public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.”

Just days after the April 9 denial by a New York appellate court of his application seeking to prohibit the enforcement of certain portions of Judge Merchan’s gag order, Trump took to his social media platform Truth Social and published three posts about people thought to be prosecution witnesses against him: Stormy Daniels and Michael Cohen. In the posts—made essentially on the eve of the trial—Trump attacked Daniels’ and Cohen’s credibility and participation in the proceedings, referring to them in one post as “two sleaze bags [whose] lies and misrepresentations, cost our Country dearly[.]” 

As his trial began on April 15, Trump continued to push his attacks against Cohen, publishing an additional five posts on Truth Social and one post on his official campaign website including links to news articles attacking Cohen’s credibility as a “serial perjurer” and that included Cohen’s picture. And then, in an attempt to target the ongoing jury selection process, Trump published a post on Truth Social including allegations that “Liberal Activists” were lying to Judge Merchan in order to become jurors. Just days after this post, Judge Merchan was forced to excuse a seated juror who cited her concern that “outside influences” would “affect [her] decision making in the courtroom.” Many other potential jurors expressed their anxiety and fear of the heightened scrutiny they would be subject to if selected.

“Gag orders are critical tools to ensure the integrity of the system, and they are particularly important in this case, where we know that there is a causal relationship between Trump’s words and the violent actions of his supporters, who see them as inspiration or orders. ”

Trump’s violations of Judge Merchan’s gag order come as no surprise. Trump was also subject to a protective order prohibiting him from making threatening and intimidating statements during the litigation in Colorado seeking to enforce his disqualification from serving as president under Section 3 of the Fourteenth Amendment based on his incitement of the insurrection on January 6, 2021. Such judicial intervention was necessary to ensure the orderly administration of the proceedings given that in the few days prior to the order, Trump attacked CREW, which brought the litigation on behalf of Colorado voters, by name at campaign rallies and gave an interview in which he directed his followers to “check [CREW] out, individually, every one of them.” Upon issuing the order, Colorado District Court Judge Sarah B. Wallace stated, “I 100 percent understand everybody’s concerns for the parties, lawyers, and frankly myself and my staff based on what we’ve seen in other cases.” Trump has shown little respect for the rule of law and will go to extraordinary lengths to try to protect himself and his interests, particularly during major trials. 

That’s why it’s so hard to overstate the importance of these gag orders. The American legal system requires legal rulings based on the facts and the law, a jury that is selected fairly, testimony from witnesses that is truthful and unbiased and a final decision based on the jury’s understanding of the facts as presented to them by the two parties. Pressure or threats directed at the jury, witnesses or the judge at any stage undermines that entire structure and the constitutional protections that come with it. Gag orders are critical tools to ensure the integrity of the system, and they are particularly important in this case, where we know that there is a causal relationship between Trump’s words and the violent actions of his supporters, who see them as inspiration or orders. 

But gag orders only work if they are enforced. And if Judge Merchan ultimately decides not to enforce this particular gag order right now, he will be setting a very dangerous precedent, one that could undermine the entire case and trial. As we all know from this case and from numerous other instances where he has faced legal accountability, Donald Trump has shown little regard for the rule of law. If Judge Merchan does not enforce the gag order, Trump will not follow it. He will continue to use his immense platform and zealous fanbase to pressure everyone involved in this trial. He will continue to throw out wild conspiracy theories, attack individuals by name and even threaten to overturn another presidential election.

And he will continue unless he is stopped.