He does it anyway
Now there’s a trial within the trial. The trial has been paused while the judge and the lawyers discuss what to do about Trump’s nonstop violations of the gag order.
Trump was warned he could face sanctions if he violated the order, “and here we are”, the prosecutor says.
They are now going over each of the social media posts where Trump allegedly broke the order, including one he reposted from Michael Avenatti, Stormy Daniels’ former lawyer, who is now serving time in prison for extortion, tax evasion, fraud and embezzlement.
…
Some of the most striking moments so far have occurred when prosecutors have recited Trump’s own words back at him as he sits here in court.
Just now, lawyer Christopher Conroy recited the remarks Trump made outside the courtroom yesterday about Michael Cohen.
Trump is playing an extended game of fuck around and find out.
“He knows about the order, he knows what he’s not allowed to do, but he does it anyway,” prosecutor Christopher Conroy tells the court. Conroy argues the proximity of the posts to the events of trial, and the subjects discussed in them, make it clear what they are about. Conroy says he can’t see any “straight-faced argument” that these posts don’t relate to the trial. He also alleges the disregard for the order is “intentional”.
And a reminder for our readers, the burden of proof is on the District Attorney’s office to prove that Trump wilfully
flaunted[flouted] the gag order covering the trial. That’s what Conroy is trying to prove right now.
I suppose one could make an argument that Trump is genuinely too stupid and too self-enclosed to understand that the gag order is real and applies to him and can be enforced. One could probably make an argument that he genuinely believes that he alone is allowed to ignore things like gag orders.
Trump’s defence lawyer, Todd Blanche is now arguing his case to the judge. He claims Trump is fully aware of the gag order, and did not violate it because he was not attacking witnesses in relation to the trial specifically, just in general.
Blanche adds that Trump was simply responding to attacks from the witnesses, including Cohen. “He’s allowed to respond to political attacks, your honour,” Blanche says.
Hmm. Nah. Not convincing. I’d go with “He’s too stupid to get it, your honour.”
Todd Blanche, one of Trump’s lawyers, is becoming increasingly
aggravated[irritated].His argument with Justice Merchan over Trump’s social media activity continues. At one point, Merchan asks him if he is claiming that when Trump made the social media posts in question, the former president did not believe he was violating the gag order. Blanche stands before the judge in silence for several seconds before moving onto something else.
Say yes! Say that’s exactly it: he did not believe it, because that really is how stupid he is.
Not that it would work, but it would be fun to see.
My guess is that it never occurred to him to care whether he was violating the gag order.
“wilfully flaunted the gag order”
No
He willfully flaunted his flouting of the gag order.
This is another case of Al Capone versus a weak, acquiescent system. What I don’t want to see is more of the usual, where he deliberately flouts the rules, but everyone’s going out of their way to give him the benefit of the doubt, above and beyond what’s reasonable, especially given how dangerous he is. Stop with the kabuki theatre, judges! He doesn’t deserve any more leeway. Step up and jail him already!
It’s maddening, isn’t it. I suppose they want to give him about 100 times more rope to hang himself with than would normally be necessary.
I forgot to do the cross out/brackets thing with the reporter’s “flaunt” mistake. Why does the BBC hire people for writing jobs who didn’t learn about that mistake around age 12?
I think you’re right about the giving of a lot of rope. There’s a couple of things going on here, I think.
First, given the litigant, Justice Merchan can safely assume that any order that can be appealed, will be. (And by “appealed” I’m including emergency writs and petitions on things that aren’t technically “appealable.”)
Second, given the high profile of this case, the appellate court is going to pay more attention to any appeals and emergency petitions than they ordinarily would. Usually emergency or interim appeals are huge longshots and the courts don’t even invite full briefing or argument.
Finally, contempt and sanctions rulings are one area where I think appellate courts are a little more cautious than the formal standard of review calls for. (I don’t know offhand what the actual legal standard of review is in NY for contempt rulings — my point is that in reality it probably gets a hard look) Trial judges generally get a wide berth on anything discretionary, but I think there’s an awareness that the power to sanction parties and attorneys, and fine or imprison them, especially in summary proceedings, is something that needs a close look. So even in an “ordinary” case, trial judges tend to be pretty careful before holding people in contempt or imposing big sanctions. There’s a lot of “warning shots” and “last chances” typically (and in fact, that’s sometimes built in to the formal standard of review — did the trial court consider whether lesser remedies would be sufficient) The Hollywood thing of a cranky judge casually tossing out fines and putting attorneys in lockup is, I think, largely a myth, other than some rather standard things like fines for missing a hearing without good cause.
So yeah, I would expect the trial judge to be cautious here, and not just because it’s Trump, though certainly it’s a factor.
Thanks Screechy! (I take it the missing word in the first sentence is “right”? But “wrong” would fit too so I seek confirmation.)
Right!
I take a view that I grant isn’t one most other people take, which is that the courts should know when to ease off on overcaution for the greater good of justice, and that this is such an instance. I guess what I’m saying is, what looks like a regular amount of caution or leeway to most, looks to me like a mistake from the point of view of the bigger picture. The problem is that this isn’t a typical situation, there’s a time limit involved, and the stakes are much higher than any other typical case, pretty much ever. I don’t think it’s unreasonable for judges to take that into consideration. I don’t think we should all be bending over backwards to try to make this look like any other typical case. It isn’t. I think that if Trump gets into the White House again, and if the outcome of that ends up as bad as some of the more dire analyses predict, we’ll look back at trials like this like woefully missed opportunities to save democracy. We’ll wish to god that people in the legal system had acted more aggressively — still within the bounds of the law, just not staying squarely in the middle of the road, because this is no middle-of-the-road case — while they had the chance.
I guess I just don’t see one thing (the enforcement of the gag order) as having much to do with the other (Trump’s election chances).
Judge Merchan could order Trump incarcerated tonight (he won’t; the prosecution isn’t even asking for that), and all that would happen is an appellate court would reverse, Trump would be released, and Trump would claim persecution and vindication. People who hate Trump would cheer initially and then grumble about the reversal; Trump’s supporters would do the opposite, and the people who are actually going to decide this election will just go “huh?” and go back to ignoring politics like they do 99.9% of the time.
More generally, it’s not the job of the courts to “save us” from the idiotic decisions of voters. If the American people are dumb enough to re-elect Trump — and they very well might be — then the country is doomed anyway.
Now, if you’re saying that some of these cases have moved a little too slowly in general, I’d agree, but I don’t really blame the judiciary, with the partial exception of Judge Cannon. Most of the blame goes to the prosecutors: the DOJ for being plodding and cautious, the Manhattan DA for initially declining the case, and Fani Willis for trying to turn this thing into a career-maker and idiotically appointing her boyfriend special counsel. The reality, though, is that big, complex, document-intensive cases take time, and if you start trying to rush things because it suits the election cycle, you just legitimize Trump’s complaints that this is politically motivated.
All good points, and still I’m not sold. Again, though, I know my view isn’t shared by most.
I’m not as interested in who to blame as I am in getting things done. Preventing catastrophe before the fact is better than determining who was at fault afterwards.
My (again, admittedly out of the ordinary) view is that the judicial process itself is potentially at risk, and that people are being woefully short-sighted by not taking that into consideration.