Trump Is Going to Leave Judges With No Choice but to Hold Him in Contempt

Despite this week’s fireworks in Fulton County, Jack Smith’s federal prosecution of Donald Trump on charges related to his attempt to overturn the 2020 election will almost certainly be the first Trump criminal case to trial—and a landmark in U.S. history.

Trump must fear facing the jury in that case for at least two excellent reasons: 1) If he is convicted, as seems likely, criminal penalties would be imposed by a proven “tough on Jan. 6” judge, and 2) there is potential for loss of enough political support to end his vision of pardoning himself and commanding “his” Department of Justice to drop prosecutions.

As the New York Times reported on Wednesday, Trump also appears on course to collide directly with D.C. District Judge Tanya Chutkan before the case even gets to trial. Trump’s accelerating habit of condemning judges who hold him to account, making menacing statements about witnesses, and disseminating factual distortions to influence potential jurors has him on the road to a judicial response of a kind he’s never experienced before.

The special counsel’s team reported to Chutkan on Aug. 4 that, following the D.C. indictment, Trump posted on social media: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” On Monday, Trump posted messages on social media that Chutkan was “highly partisan” and “VERY BIASED & UNFAIR!” That came only three days after the judge warned him about posting messages that could jeopardize a fair trial.

If his personal history weren’t sufficient, Trump’s posts are all the evidence we need to know that until stopped, he will continue recklessly testing—and polluting—the judicial waters.

What happens when an immovably fixated object meets an irresistible judicial force?

Answer: Sooner or later, the immovably fixated object ends up subject to pretrial “gag orders,” fines, home detention, or confinement in tighter quarters with the Secret Service handing him Diet Cokes through the bars.

Nothing is certain. But here are five reasons why Trump seems set on a pretrial collision course with justice.

First, Trump knows that the time until his criminal trial, the thing he wants to avoid above all else, is far shorter in D.C. than in Fulton County. As widely observed, Trump’s best defense is not in court, but rather to run out the clock until after the November 2024 election. If reelected, Trump will hand-pick an attorney general to quash federal criminal proceedings against him and try to protect him from state prosecutions, at least while he is president.

Further, however impressive the scope of the Fulton County indictment, it names 18 co-defendants and 30 unindicted conspirators. That multiparty case faces plenty of obstacles and legal proceedings before trial. Nothing is comparable in the single-defendant D.C. prosecution.

In the D.C. case, Chutkan understands Trump’s career strategy of delaying litigation against him. So does the U.S. Court of Appeals for the District of Columbia Circuit to which Trump may try to appeal pretrial matters.

Early this month, Chutkan promptly scheduled an Aug. 28 hearing for setting the trial date. Her rapidity signaled that the trial will be calendared for an early 2024 date, well before the election.

Second, when the trial actually begins, the D.C. grand jury’s indictment is built for speed. The indictment is streamlined to complete the entire proceeding in a matter of weeks. All four alleged legal violations in that indictment can be proven by the same set of facts.

Third, the D.C. grand jury compiled monumentally strong evidence against Trump. Smith’s track record shows that in a case of this magnitude, he will have testimony, documents, or both to back up every factual allegation in the indictment.

Fourth, in Georgia, Trump and his lawyers will look for one or more jurors who will hang the jury notwithstanding evidence that proves his guilt beyond a reasonable doubt. The odds of finding such a juror rise if Trump succeeds in moving the Fulton County case to federal court.

With these same juror-shopping motives, Trump will bring a motion to move the D.C. case to Trump-friendly West Virginia. The prospects for that motion are as weak as ivermectin’s effect on COVID.

D.C. juries are known for straight-shooting. They protect defendants when the prosecution fails to make its case at trial. But they convict when the proof demands it. Trump should be able to see the handwriting on the wall.

Fifth, because a D.C. trial conviction seems so likely, here’s the political reality that has Trump desperate to keep undermining the judge, the prosecutor, and the judicial system. A recent Reuters-Ipsos poll showed that if Trump is convicted, 45 percent of Republicans say they would no longer support him.

To shrink that 45 percent, Trump will keep attacking court legitimacy as if his liberty depends on it. He’s seen how his disinformation has convinced many Republicans that his “big lie” is true, despite a mountain of contrary evidence.

Trump seems to have perversely calculated that he has more to gain by campaigning against his legal adversaries in the court of public opinion than he risks losing in a potential fight over his public messages that flaunt judicial warnings. He seems to be daring Chutkan, Smith, and the entire legal system to act.

As a former president and current candidate, Trump may well get three strikes—possibly four or five—before there are any serious consequences. His fear for his future triggers him to push the limits.

Continuing his inflammatory social media posts could put Trump in violation of the conditions of his release on bail pending trial. That is the basis on which he would potentially be warned, gagged further, fined, put on home confinement, and ultimately even placed in jail.

Celebrated cryptocurrency pretrial defendant Sam Bankman-Fried abruptly learned this week the dangers of defying court conditions on pretrial release. New York District Judge Lewis Kaplan sent Bankman-Fried to jail in handcuffs for jury tampering.

Trump’s case is higher profile, and as a presidential candidate, he’ll make First Amendment claims against contempt charges that Bankman-Fried cannot make. Trump surely will want those claims litigated in the hopes of further delaying trial.

But Trump’s First Amendment rights as a pretrial defendant are constrained, as Chutkan instructed him last Friday: “In a criminal case such as this one, the defendant’s free speech is subject to the rules.”

More specifically, she stated, “The fact that he is running a political campaign … must yield to the orderly administration of justice.” In Sheppard v. Maxwell, the Supreme Court left no doubt that free speech rights “must not be allowed to divert the trial from the very purpose of the court system.” That purpose includes “the requirement that the jury’s verdict be based on evidence received in open court, not from outside sources.”

If Trump’s plan is to use litigation over contempt charges to further delay his Jan. 6 trial, good luck with that. In Bankman-Fried’s criminal case, there is no sign that his lawyers’ swift appeal of Kaplan’s go-to-jail order will have any effect on the defendant’s October 2023 trial date.

The same non-effect would be a near certainty in Trump’s D.C. case over his criminal conspiracy to overturn the 2020 election. Courts are disinclined to reward any violation of conditions of release with a delay of trial. Doing so would invite criminal defendants to obstruct judicial case management if they calculated that a bit of time in the clink was worth lengthening the time before their reckoning with a jury.

Still, Chutkan does not want to put a defendant behind bars before trial. Judges do so reluctantly. And this defendant is, after all, a former president and the current front-runner for the Republican nomination for the presidency in 2024.

While Trump may not relish the reality of facing contempt charges, he may view it as a political briar patch that he can endure and turn to his advantage. He would use it as one more ploy for campaign fundraising by reanointing himself a victim. This is his favorite wool to pull over the eyes of his cult followers.

Against this background, Chutkan smartly let Trump know from the get-go that she was prepared to give him a fate worse than temporary jail if his attacks continued. She told him she would feel compelled to accelerate the trial date to protect his right to a fair trial. She knew that that was the last thing he wanted.

Nonetheless, Trump’s team knows there are limits to the judge’s speedy-trial threat. Due process requires that they have adequate time to prepare. With millions of megabytes of discovery in the case, the minimum fair trial process will require many months to prepare.

Ultimately, if Trump’s attacks on courts persist in her case, Chutkan will have no choice. Unless she draws the inevitable line, he will make a mockery of the judiciary.

No system of justice can tolerate that. Nor will she.

With such open contempt for the court system, there may ultimately be only one thing worse than jailing Trump: not jailing him.