Judge can’t avoid fitness being questioned if Trump’s jailed for contempt

THE judge presiding over Donald Trump’s hush money payment trial would face questions surrounding his competency if he jailed the ex-president for breaching a gag order, a lawyer has said.

Trump vehemently denies allegations that he falsified business records in a bid to kill potentially embarrassing stores in the run-up to the 2016 presidential election.

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He has lashed out at jurors and witnesses online and Judge Juan Merchan concluded a gag order was violated nine times.

Trump was slapped with a $1,000 fine for each violation but Merchan warned the brash tycoon could face further penalties.

A hearing was held on Thursday to investigate if Trump violated the gag order another four times.

Gregory Germain, a law professor at Syracuse University, told The U.S. Sun Trump is doing himself no favors at the early stage of this trial.

“Trump does himself no service by constantly attacking the judge, the jurors, and the clerks,” he said.

“Trump is the defendant. He’s not the judge. The judge is so exasperated at his insistence on trying to control the proceedings. 

“It’s a very bad court strategy, but maybe it’s a good political strategy.”

Merchan has even threatened that the former president could end up in jail if he continues to violate the gag order.

But, Germain has warned about how such a move could impact the rest of the proceedings.

“I think it would be wise of the judge to lecture Trump about it – not try to sentence him to jail,” he said.

“If he sentenced him to jail, it would raise a hue, a cry, and a crisis.

“There would be immediate appeals and the appellate court would probably issue an emergency stay.

“It would just be a mess. It would raise questions about the judge’s fitness to try the case and his independence.”

Trump was ordered to delete several Truth Social posts – all of which have since been removed. 

But Germain believes Merchan’s order was one-sided. 

“I think the order is unfairly one-sided that he’s not allowed to say anything about any of the witnesses, but the witnesses are allowed to make comments that they want,” he said.

“Trump has made many comments about Michael Cohen [Trump’s ex-lawyer] and some of these other very public witnesses, so I don’t think there was a legitimate reason to prevent him from speaking out about those who’s he spoken about in the past. 

“I think it’s totally appropriate that he shouldn’t be commenting on individual jurors. He’s definitely pushing the limits.”

Germain noted that there are two different types of contempt. 

Direct contempt is committed in front of a judge, but violations can take place outside the courtroom.

“A violation of an order outside of the hearing of the judge is not a direct contempt,” Germain said.

“They’re supposed to give you written charges, and you’re supposed to have all of the normal criminal protections, including a right to a jury trial before sentencing.”

Germain doesn’t think Merchan will give Trump a jail sentence but warned the tycoon is testing the judge’s resolve.

“Trump wants to push the limits of everything. He’s like a kid that’s pushing the limits of the parent,” he said.

If he sentenced him to jail, it would raise a hue, a cry, and a crisis.

Gregory GermainProfessor of Law at Syracuse University: College of Law

“He’s trying to see whether the parents are actually going to punish him.

“Does that game look good to the jury? I don’t think so.”

Germain said Trump is upset with the proceedings. 

“But he’s got to comply with the court’s rules and he has a tendency for trying to control the proceedings,” he said.

“He’s not in control of the proceedings and he’s got to follow the judge’s instructions.”

Germain believes Trump has been dogged by the weight of the proceedings as the trial reaches its third week.

Court sketches have depicted Trump as a scowling figure who is holed up in a grubby New York courthouse.

“Anybody would be overwhelmed by the stresses of trying to run a campaign and being constantly dogged by these legal actions,” Germain said. 

“The stress lines are showing in him I think.”

‘BULL IN CHINA SHOP’

Trump has previously vowed to testify in a dramatic bid to clear his name. 

He has long claimed the prosecution has no case and has vowed that he’s truthful.

Germain warned Trump’s temperament could play against him.

“He’s kind of a bull in a china shop,” he said.

“He’s going to be bucking and you just don’t know what’s going to happen.

“He’s a very difficult guy to control. His lawyers are going to be very concerned about putting him on the stand under oath.”

TRUMP’S BATTLE

Trump faces 34 felony counts and a conviction could see him sent to prison for up to four years. 

He’s been accused of falsifying business records in an attempt to bury potentially embarrassing stories that his team feared could derail his 2016 presidential campaign.

Cohen paid porn star Stormy Daniels $130,000.

Daniels said she had an affair with Trump – allegations he vehemently denies. 

Trump’s company allegedly reimbursed Cohen and these records were reported as legal expenses.

But Germain noted that the case is messy for the prosecution and they have to overcome certain challenges.

“The real question in the case concerns the law and the law is very, very difficult for the District Attorney to prove,” he said.

Germain said the first task the prosecution must prove is business records were falsified in a bid to defraud somebody.

“They don’t identify who was defrauded or how it was fraudulent to make these entries,” he added.

“He was obviously trying to hide something, but who is being defrauded? Fraud normally involves a property crime against somebody.

“The first element is ‘Was he doing it to defraud someone?’ Or was he doing it to hide embarrassing facts?’”

Prosecutors must also be able to prove any alleged false business entries were made to conceal an independent crime, Germain said.

“The bigger issue is ‘Where is the independent crime?’ It seems like the district attorney is trying to make the argument that there was some kind of election fraud or conspiracy to hide these payments,” Germain said.

“It’s very hard to understand that claim.”

HIGH-PROFILE WITNESSES

Trump has until Friday to pay the fines. He has repeatedly decried the gag order as unconstitutional. 

But, he could be slapped with additional penalties as there will be another contempt hearing. 

So far, the court has heard from David Pecker, the former publisher of the National Enquirer. 

American Media Inc, the parent company of the National Enquirer paid Karen McDougal $150,000 for the rights to a story where she claimed she had an affair with Trump, per the court docs.

Rhona Graff, Trump’s ex-assistant, and Beverly Hills lawyer Keith Davidson have also testified.

Cohen is likely to be among the high-profile figures that could testify at the trial. 

The legal proceedings have impacted Trump’s ability to be on the campaign trail. 

But polling data crunched by Real Clear Politics still show Trump with a slender advantage over Joe Biden. 

Trump has an average lead of 1.5 percentage points nationally.

Exactly four years ago, Biden’s national lead was more than five points.

Trump also has an advantage in the crucial battleground states that will decide who is inaugurated next January.

Trump has narrow one-point leads in Pennsylvania and Michigan – two states he lost in 2020.

But he has a larger advantage in the states of Arizona, Georgia, North Carolina, and Nevada. 

If the election was to be held today, polls suggest that Trump would retake The White House, according to RCP.

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