Gag order is opportunity to show Trump consequences
After Donald Trump smeared acting Manhattan state Supreme Court Justice Juan Merchan’s own daughter, Merchan expanded his gag order to include the families of himself, DA Alvin Bragg, prosecutors, witnesses and court staff.
If and when Trump violates the order (as he is always inclined to do), what should come are serious and proportionate repercussions — not small fines Trump can fundraise for, but further restrictions, including a stay in jail.
Trump should face the same consequences that everyone else does for violating a court order. Either there are real, punitive steps that can be taken to punish Trump for his contempt of court, or there aren’t, and we might as well scrap the American experiment of equal justice under law altogether.
There are always reasons not to do something and it’s not always possible to predict the outcome of an action taken against Trump. Will he respond to attempts to fine or jail him by ginning up his fundraising? Probably. He would love to portray himself as a political prisoner.
But like much of our current unprecedented moment, dealing with the unpredictable is the entire point of governing systems. If everything was smooth and predictable, there’d be no need to have a constitutional order at all.
Legal decisions should be rooted in the law and the principles of justice and proportionality. We can say that there are significant downsides to the failure to hold him to account, to raise the specter of penalties and then not follow through.
We know this because we’re living in the world created by these failures. At every step of the way, institutions that could have stepped in and made clear to Trump that there were limits that could not be pushed by bluster and threat have given him a pass, letting him go just a bit further. His creditors let him coast, the authorities didn’t step in as he ran his business through grift and fraud, the mainstream GOP felt they could keep him around as a useful idiot, the Senate failed to convict during his second impeachment and opened the door for him to run again.
If there’s one long-standing power Trump — who is not particularly hard-working, poorly read and singularly selfish and unkind — has had, it’s a kind of veneer of impermeability that only a youth of money and bullying could generate. He thrives not in spite of but partly because he is constantly breaking norms, laws, regulations and standards of basic decency, daring anyone to intervene. Whenever someone doesn’t, it just reinforces that he can do it again, do it bigger.
Does Trump seem empowered by the verdicts in the civil fraud and E. Jean Carroll defamation cases? Does he seem better off for having been put on the hook for hundreds of millions of dollars, for being made to sit in a courtroom as judges and lawyers discussed his transgressions? No, the idea that he can only benefit from consequences is a fiction he has an interest in maintaining. If he violates the order, it should hurt.