In the high-profile hush-money case against Donald Trump, the former president has faced only fines for repeatedly violating a gag order. However, the consequences of his actions might not end there. If convicted, Trump's defiance of the judge's order—marked by recent comments that test its boundaries—could result in a harsher sentence.
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Aggravating Factors at Sentencing
Mark Bederow, a seasoned New York defense attorney and former Manhattan prosecutor, points out that Trump's unrepentant verbal attacks on witnesses, prosecutors, and the judge could serve as aggravating factors. "Those are obviously aggravating factors, generically speaking, for someone to get a stiffer sentence," Bederow explains.
Justice Juan Merchan, overseeing the case, has already penalized Trump for some of these attacks. Trump was held in contempt twice for ten comments that violated the gag order, resulting in a $1,000 fine per violation, the maximum allowed under state law. Recognizing that such fines might have little deterrent effect on a wealthy individual like Trump, Merchan has threatened to jail him for future violations.
Trump's Defiance and Recent Comments
Initially, the threat of jail seemed to curb Trump's public commentary. However, as the trial nears its end, Trump has resumed making provocative comments. On May 16 and May 21, he criticized one of the prosecutors, Matthew Colangelo, without naming him directly. Trump suggested that a prosecutor "came from" the Justice Department to manage the hush money case, a clear reference to Colangelo.
Under the gag order, Trump is prohibited from commenting on the team working for DA Alvin Bragg, although he can comment on Bragg himself. Despite this, prosecutors have not alerted Merchan to Trump's latest comments about Colangelo, possibly choosing to focus on concluding the trial.
The Impact of Gag Order Violations
Anna Cominsky, a law professor at New York Law School, notes that dealing with the gag order has been a significant distraction for both sides."They might have concluded that with a portion of these — what they might decide are infringement — they simply don't have any desire to seek after," Cominsky says. Nonetheless, if Trump is convicted, prosecutors could use his public comments as a reason to push for a harsher sentence.
Barbara McQuade, a legal commentator and former U.S. attorney, emphasizes the unprecedented nature of Trump's contempt for the judge's gag order. This makes it challenging to predict how a judge might handle the situation. Trump faces 34 felony counts of falsifying business records, with a maximum prison sentence of four years. However, given the low-level nature of the felonies and Trump being a first-time offender, any prison time is uncertain.
Mitigating and Aggravating Factors in Sentencing
Justice Merchan's decision on whether to impose prison time or a lesser punishment, like probation, could depend on various mitigating or aggravating factors. McQuade highlights that remorse and the need to promote respect for the law are typically considered during sentencing. Trump's repeated violations of the gag order could be seen as a lack of remorse and respect for the law.
Cominsky agrees that the judge might consider the violations but believes it would be inappropriate to impose a harsher sentence based on them alone. She argues that Trump has already been punished for the contempt through fines.
Chilling Effect on Trump's Rhetoric
The contempt orders did seem to have a chilling effect on Trump's rhetoric. Most of the ten violations were social media statements about potential witnesses, which he has since ceased. During his daily interactions with reporters in the courthouse hallway, Trump frequently mentions that he is limited in what he can say, arguing that these limits violate his First Amendment rights. "Remember, I'm gagged," he remarked earlier this week. "So why would I take the chance? We do want to defend our Constitution. So at some point maybe I will take the chance."
Despite these claims, Trump took a chance later that day, making a veiled criticism of Colangelo to reporters. "Take a gander at the individual, how about you take a gander at the individual who contended for their situation, practically the whole case? Look at the person—where did he come from?" " Trump said, intimating that Colangelo came from the Biden organization.
Colangelo's Role and Trump's Public Events
Colangelo, a former Justice Department official who joined Bragg's office in 2022, has become a target of conservative media and the House Judiciary Committee, which recently sought records about him from the New York attorney general.
With the trial on a hiatus until Tuesday's closing arguments, Trump has several days free from the courthouse and the watchful eyes of Justice Merchan and his lawyers. During this time, he has various public events scheduled, including a speech at the Libertarian convention. Prosecutors will likely monitor these appearances to see how carefully Trump chooses his words.
Conclusion
As the hush money case against Donald Trump moves towards its conclusion, the former president's repeated violations of the gag order could play a significant role in his sentencing if convicted. Whether these actions lead to a harsher punishment remains to be seen, but they undoubtedly add a complex layer to an already high-stakes trial.
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