It’s possible that Trump is going to face some incareratory punishment before the week is out. This is because, as I noted yesterday, surrogates of the disgraced ex-president showed up outside of a Manhattan courthouse on Monday and Tuesday where he’s on trial in the Stormy Daniels hush money case, and they attacked the presiding judge’s daughter and Michael Cohen, a witness who was testifying at the time. Speaker of the House, Mike Johnson, was the most prominent participant.

The reason this is problematic for Trump is that on April 1, Judge Juan Merhcan issued a clarification of his previous gag order limiting what the defendant can say about the trial outside of court. The reason the original order was revisited was that Trump had been attacking Merchan’s daughter, referred to below as “a family member of the court.” The prosecutors objected to this on Merchan’s behalf. Here’s the relevant part of the revised gag order, and I think it’s important to note that Merchan found that attacking his daughter served “no legitimate purpose” and “injects fear in those assigned or called to participate in the proceedings. ” The Judge further wrote (with italics for emphasis) that Trump’s vitriol was making family members “fair game.”

Therefore, Merchan made the following orders, and the important part here is that he not only prohibited Trump from making future attacks, but also from “directing others” to do so. This explicitly included “family members of…the Court,” meaning Merchan’s daughter. It also included witnesses like Cohen.

So, it’s very clear that Trump cannot “direct” comments against people covered by the gag order, but on Tuesday he referred to those ripping Cohen and the judge’s daughter as his “surrogates” and said they were “speaking very beautifully.” But the most damning evidence comes from journalist Andrew Rice. Rice was sitting close enough to Trump in court to see him annotating and editing the talking points his surrogates were hitting outside the courthouse. Trump was doing this during Cohen’s testimony.

Wednesday is a day off from the trial, but on Thursday I hope Judge Merchan demands that Trump turn over these annotations for his review. In addition to Rice’s description, further evidence of foul play was provided by some of the surrogates, including Sen. Tommy Tuberville of Alabama.

Now, to be clear, Sen. Tommy Tuberville is not subject to the gag order, but Trump is not allowed to direct him or others to say things that are barred under the order. By referring to the attackers, including Tuberville, as his “surrogates” and approving of their “beautiful” words, Trump is definitely walking right up to the line. But if he was providing them direction in the form of talking points, he definitely defied the order.

Merchan has already found Trump in criminal contempt of court twice and imposed ten $1,000 fines which is the maximum allowed for individual violations of the gag order under New York State law. But he realizes that this paltry sum isn’t a deterrent to someone of Trump’s wealth, particularly when he fundraises off of every sanction. That’s why he warned on April 30, that he may have to imprison Trump for future transgressions.

The judge explained that because the fines, which are limited by state law, were relatively little in comparison to Trump’s wealth, they might be unlikely to deter the former president from abiding by the court’s order. Merchan said that while he would prefer to impose commensurately larger fines, he instead had to consider “whether in some instances, jail may be a necessary punishment.”

I believe the prosecutors would need to raise these issues with the judge in order for him to act, and maybe they think the trial is going well and don’t want to interrupt the flow by pushing for Trump’s incarceration. Yet, theres’s no reason to believe these surrogate attacks will stop on their own, and their purpose is to intimidate. Frankly, the judge’s daughter is under attack and deserves protection.

If Trump will not produce his notes, I believe he should be locked up. And if does produce the notes and they indicate that Rice’s account is correct, he should also be locked up. And, I can definitely see either outcome actually happening, as shocking as it is to contemplate.

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