Will Trump’s Barbs Land Him Behind Bars?

 

 

It was a historic and jarring event when FBI agents searched former President Donald Trump's home last year to look for classified documents he was accused of hoarding. It was shocking when Trump was indicted in four separate cases, including three directly related to his conduct as president and as a former president. It was stunning to court-watchers when Trump continued to attack prosecutors, judicial personnel and potential witnesses as the cases against him proceeded, resulting in fines against the former president-turned-defendant.

But are judges willing to take the next step – perhaps the most unsettling for a country accustomed to being more deferential to its former leaders – and put Trump behind bars? If Trump violates gag orders or violates the terms of his bail by threatening witnesses or court personnel, will a judge – to use a phrase Trump frequently lobbed at his 2016 election opponent – lock him up?

Doing so could make the judge a target of vitriol and even violence and could be a security nightmare as authorities figure out how to safely incarcerate a man who has Secret Service protection himself. And it would forever change the narrative of American democracy, where misbehaving presidents are voted out or forced into self-imposed domestic exile, experts say.

But refusing to take a step that is used against virtually every other defendant who violates a gag order or conditions of bail could endanger American democracy even more, they say, by establishing a separate category of justice for the powerful.

"Trump will continue to get as close to the line, if not crossing the line, of propriety as far as the gag orders are concerned until he is actually and meaningfully penalized by a court," says Richard Signorelli, a former federal prosecutor who now has a criminal defense and civil litigation practice in New York City.

"Given his status as a former president and a current candidate for president, the courts will continue to treat him in a different and more special way than they would an ordinary litigant or defendant. However, if he continues his approach of testing the court, he will be punished in an escalating fashion. I do believe … if Trump continues to violate, she will order him detained in his home," Signorelli says, referring to federal Judge Tanya Chutkan, who is overseeing the case related to the Jan. 6, 2021, insurrection at the Capitol.

Sending Trump to jail for contempt – or even putting him in home detention, as legal experts think is a more likely scenario, given the security and public relations complications of putting him in a local or federal facility – has implications for Trump if he is convicted, experts say.

Prosecutors "didn't want to be the first person to charge a former president. Then, [New York District Attorney] Alvin Bragg opened the door and everyone walked right through it," says California trial lawyer and former federal prosecutor Neama Rahmani.

Similarly, if Trump is confined – at home or in a facility – for violating gag orders or the terms of his bail, it would create a new precedent that would make it easier to imagine Trump in prison if he is convicted of any of the 91 felony counts against him.

"Courts and prosecutors have to become normalized to the idea of detaining Trump – if he continues to violate gag orders and/or if he is convicted at trial," Signorelli says.

Less-powerful defendants have been punished with time behind bars for being in contempt of court (including violating gag orders) or threatening authorities. This week, Vitali GossJankowski, found guilty on several charges related to the Jan. 6 insurrection, was jailed pending sentencing after he "doxxed" FBI agents, releasing private information about them and threatening the agents on social media.

Sam Bankman-Fried, the former billionaire crypto trader, was put behind bars in August weeks before his fraud trial after giving a media outlet private writings by a witness. A judge said the actions amounted to witness tampering and violated the terms of Bankman-Fried's bail.

Trump is playing a game of legal chicken on several fronts: He has limited gag orders in two cases – a civil fraud trial in New York City, where two of his children testified this week, and the federal case on charges related to the events of Jan. 6, 2021.

In Georgia, where four of the 19 defendants in a case alleging conspiracy to undo the 2020 elections there have already pleaded guilty, Trump is free on $200,000 bail. But if he violates the conditions of his bail – which include threatening or intimidating witnesses – a judge could impose escalating penalties, including incarceration at a state facility or detention at home, legal experts explain.

Trump walked the line – and may have crossed it, former prosecutors say – when he lambasted his former chief of staff, Mark Meadows, after ABC reported that Meadows was cooperating in an immunity deal with special prosecutor Jack Smith on the Jan. 6 case.

"Some people would make that deal, but they are weaklings and cowards, and so bad for the future of our Failing Nation," Trump said on social media. Meadows, who has not been indicted in federal charges, is a co-defendant with Trump in the Georgia case.