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What the Hell is Trump Doing in Court?
It was a busy day in court for Donald Trump.
In Washington on October 25 Special Counsel Jack Smith asked the court to reinstate a temporary gag order, this time with jail as the penalty, after Donald Trump called former White House chief of staff Mark Meadows (and by extension former allies who have cut deals in his election interference case elsewhere in Georgia) a weakling and coward if he agreed to testify in exchange for immunity. Trump had been under a earlier gag order which barred him from disparaging prosecutors, court staff, and potential witnesses in a pattern that the court filing called “targeting.” The fear was that Trump was calling out those he wanted MAGA supporters to go after. Smith urged Judge Chutkan to “modify the defendant’s conditions of release by making compliance with the Order a condition.”
On the same day, in response to his violation of a separate New York court gag order Judge Engoron ordered the former president to testify over an insult Trump threw at the judge’s law clerk. The judge found Trump guilty of violating his gag order and ordered Trump to pay a $10,000 fine on top of an earlier $5000. Trump stormed out of the courtroom, his somewhat bewildered Secret Service in tow. Trump technically remains free only on bail.
Pundits asked if Trump is actually trying to antagonize judges and lose both cases. Or could there be some other reason for Trump’s on-the-face-of-it non-self serving actions?
— Trump may be breaking up under the strain. One hates to even go near the “Trump is insane” 25th Amendment crowd, who think they can judge someone’s mental state long distance but one has to allow for the possibility that the stress of having his very existence and ego challenged (the NY trial after all concerns Trump’s actual net worth and status as a real estate kingpin) by small-time mooks like a judge and his clerk may have gotten to Trump. We’re seeing it play out as he strives to control his temper (hence the storming out of the courtroom.) If this is even in part an explanation for Trump’s counter-productive behavior in court it is a dangerous one, adding too much unpredictability into already tense situations. Perhaps Trump simply can’t stop himself. He’s “spent a lifetime attacking those who don’t accommodate him,” and he’s not able to quit now.
— Trump could easily believe none of this matters, certain he will be elected president in November 2024 and be in a position to pardon himself and any others convicted along the way. In Trump’s mind this is all or nothing and the little details, such as the outcome of a specific trial, matter not.
— It’s all about the appeal, part I. Trump knows he will lose the case in front of Judge Engoron, who has already substantively ruled Trump guilty and is holding the current trial sessions primarily to establish the penalty. By egging the judge on to make statements such as finding a Trump response he did not like a “lie,” ruling “as a trier of fact, I find that the witness is not credible… hollow and untrue” Trump is setting up an appeal claiming the judge is biased against him (otherwise, you generally as a defendant do not do things to encourage the judge to throw the book at you.) It is unclear if this is productive or even needed; there is already plenty to work with in the guise of former Trump attorney Michael Cohen, a star prosecution witness who is also a sworn enemy of Trump, a convicted felon, and serial liar singing for his supper. Cohen’s testimony is weak, claiming the former president never directly asked him to over-value Trump Organization assets, but instead implied somehow mind-reading style that he do so.
— It’s all about the appeal, part II. The judges’ gag orders against Trump rub rough against the First Amendment, which will form the basis of appeals independent of the trial content themselves. The ACLU, no friend of Donald Trump, argues the gag order imposed by U.S. District Judge Tanya Chutkan in Washington barring Trump from making public statements about special counsel Jack Smith, the defense counsel or members of the court violates the Constitution’s 1A. “No modern-day president did more damage to civil liberties and civil rights than President Trump,” the group wrote in a press release. “But if we allow his free speech rights to be abridged, we know that other unpopular voices — even ones we agree with — will also be silenced.”
Specifically, the ACLU argued Chutkan’s order is too vague, too broad, and not sufficiently justified. Trump made many “patently false” statements which have “caused great harm to countless individuals,” the group wrote. But he nevertheless “retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say.” Prior restraint on Trump’s speech must be “precisely defined and narrowly tailored,” the ACLU wrote, arguing that Chutkan’s order “fails that test.” For example, the prohibition on making public statements that “target” certain individuals is “unconstitutionally vague.” Trump “cannot possibly know what he is permitted to say, and what he is not.”
— It’s all about the appeal, part III. The substance of an appeal is irrelevant, as long as the appeal can be dragged out past the November 2024 election. It is easy to imagine a “throw it all against the wall and see what sticks” approach to buy time. An appeals court could just as easily applaud the two judges for showing restraint when they might have thrown Trump in jail for contempt. No matter, as long as it all chews up the space until the election.
Trump looks like a man who simply does not care what happens with the current trials, or any of the upcoming others. He is both convinced the system is fully unfair and equally aware that the more trouble he seems to get into the faster his poll numbers rise. Each courtroom defeat, small and procedural or a full-on guilty verdict, simply fans the flames for rally crowds. The cash penalties levied by Judges Engoron and Chutkan for violating gag orders have little meaning.
But Trump actually being jailed for violating a gag order would grant him official martyr status. Within a week of his release Trump will be comparing himself to the jailed Martin Luther King and Nelson Mandela, freedom fighters all. He could then literally test an earlier boast by shooting someone in the middle of Fifth Avenue and not lose any supporters, or perhaps with MAGA cheers in the background simply flipping off one of the judges who dare seek to decide his fate.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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