A lot of people who ought to know better have been saying a lot of very silly things about Donald Trump’s trial lately.
They’re silly, in part, because they are nonsense — but they are nonetheless dangerous. House Speaker Mike Johnson turned up at Trump’s hush-money trial to attack the process, the players and the players’ family members, claiming, “Among the atrocities here, the judge’s own daughter is making millions of dollars doing online fundraising for Democrats.”
Johnson is a lawyer and he’s not stupid. He knows that this isn’t actually true – while Judge Merchan’s daughter is a political consultant and is no doubt helping to raise money this election cycle, she’s not making “millions of dollars” doing it.
He also knows that whatever Merchan’s daughter gets up to, it’s no grounds to smear the judge’s own fairness and objectivity.
For one thing, Trump already made several unsuccessful efforts to get Judge Merchan thrown off the case, so the issue of conflict-of-interest has already been fully litigated. For another, Merchan’s daughter is a fully independent adult in her mid-thirties. So her activities are no reflection on the judge. Ivanka Trump used to raise money for Cory Booker, and you don’t see Donald Trump getting dragged for that, do you?
But these remarks are also silly because there’s every chance that they’ll land Donald Trump in jail for contempt. The former president has been fuming about the gag order since the trial began. His fury has only grown during the testimony from Stormy Daniels and Michael Cohen. He’s also been livid because, oddly enough, all his friends haven’t been keen to turn up in court to support him, and the only family member who regularly comes to court is Eric. There haven’t even been any decent protests outside the courthouse.
So for the last couple of weeks, Trump has been putting pressure on various Republicans to come out and support him. And over the last few days, quite a few have turned up, including Speaker Johnson and Sens. Rick Scott and J.D. Vance. All these people made statements attacking the witnesses, the jury and members of the district attorney’s office, saying pretty much everything else that Trump himself could not say without running afoul of his gag order and landing himself in jail for contempt.
But it was Sen. Tommy Tuberville (R-Ala.), not generally considered to be among the sharpest of knives in the Senate drawer, who let the cat out of the bag, announcing “Hopefully we’ll have more and more senators and congressmen go up every day to represent him and be able to go out and overcome this gag order, and that’s one of the reasons we went—is to be able to speak our piece for President Trump.”
When asked directly, governor and VP hopeful Doug Burgum denied that he’d been asked to attack Judge Merchan’s daughter, but you certainly don’t have to take his word for it. The idea that all these people just spontaneously showed up and started echoing the same talking points is absurd.
In fact, this whole thing sounds very much like Donald Trump’s idea of being clever. But should this end up in front of Judge Merchan, he’s unlikely to see it that way.
Merchan’s gag order prevents Trump from “making or directing others to make public statements about ... the family members of any counsel, staff member, the Court or the District Attorney.” Not only is this not clever, if Merchan concludes that Trump concocted a scheme to circumvent his order by getting other people to say what Trump cannot, there will be no second chances. Merchan will send him directly to jail for contempt.
Trump is fortunate that Judge Merchan has been reluctant to consider contempt charges absent a request from the prosecution. But after the events of the last few days, the prosecution will be looking long and hard at bringing a new motion, especially if the attacks by Trump’s surrogates stir up death threats — or worse. This could all go very bad for Donald Trump, very fast.
There’s a certain horrified amusement in watching Trump circle the flame of Judge Merchan’s gag order. But respect for the courts and our system of justice is a serious business. After the 2020 election, when Trump was in full election-denial mode, one Republican official mused, “What’s the downside for humoring him?” The downside, as it turned out, was January 6th, the most serious assault on American democracy since the civil war, and the lingering bitterness and distrust that threatens to make the 2024 presidential election even more fraught than the last one.
The Republican officials turning up at Trump’s trial are humoring his attacks on the legal system just as they did his attacks on the election. Apparently, Donald Trump believes that every trial he loses must be corrupt, just as he believes that every election he loses must be fraudulent. But Trump is being given every measure of due process available and has been treated fairly and transparently. If, after all that, a jury finds him guilty, that’s the American justice system at work, not a political conspiracy.
Speaker Johnson, at least, knows that, and it’s shameful — and dangerous — for him to pretend otherwise.
Chris Truax is a charter member of the Society for the Rule of Law and an appellate attorney.
