In all the hullaballoo about Trump’s latest attacks on our judicial system in general and the court officers in his upcoming (yea!) criminal trial in particular, one very important element seems to have been overlooked. Yes, Judge Merchan did not threaten to throw Trump into jail for violating his latest gag order, and yes, Trump is still pushing the limits like the petulant child he is. But the judge slipped in one very serious threat that I have not seen reported here:
“ … Defendant is hereby put on notice that he will forfeit any statutory right he may have to access juror names if he engages in any conduct that threatens the safety and integrity of the jury or the jury selection process,” Merchan wrote. (Trump is tempting fate on gag orders — for himself and for the country)
As the analysis by Aaron Blake goes on to point out, such a threat, while unusual, is not unprecedented:
Trump would surely claim that this would damage his ability to get a fair trial, but it’s not unheard of for judges to keep jurors’ identities private from litigants.
From that link to How Courts Care for Jurors in High Profile Cases (USCourts.gov):
Federal judges have adopted a wide range of precautions to ensure that juries are protected from threats or harassment in high-profile cases. In some cases, they work with the U.S. Marshals Service to sequester jurors, housing them at hotels whose locations are kept secret and transporting them to the courthouse from varying pickup locations and in varying types of vehicles.
Federal judges often use numbers to refer to jurors in court and sometimes decide to use “anonymous” juries, where jurors’ names, addresses and other identifiers are kept private from litigants and the public. In such cases, precautions are taken to minimize any risk of prejudice to either party.
What this threat means in practice is the defense team will not be able to research potential jurors and screen out those who might be biased against Trump (which, by Trump’s definition, means anything less than total loyalty and adoration). Presumably the prosecution will still be able to do so, and certainly the judge will conduct his own voir dire to ensure a fair trial and avoid grounds for appeal.
Blake makes this clear:
The idea was apparently that this sanction could prove compelling to Trump in a way that monetary penalties and an unlikely stint in jail haven’t and wouldn’t. That’s because it bears on Trump’s ability to scrutinize would-be jurors and defend himself in the case.
Fines mean nothing to Trump. (He gets his sheep to pony up the funds.) Trump is betting, probably correctly, that neither this judge nor the others will throw him in jail, because that would raise howls of “election interference” and certainly ratchet up the threat level against them. (Given how thin this judge’s and other judges’ patience is getting stretched, that may be the best bet Trump could make right now.) But this threat really does carry weight: if Trump can’t rig the jury, he is all the more likely to lose.
I’m betting Trump will trigger the threat anyway.
Added at 15:50 PDT: Bear in mind that Trump has many vulnerabilities lining up against him as November approaches. This criminal trial is only one of them. He is also making himself more vulnerable by his reactions to the impending trial date by indulging in wilder and wilder behavior. He will, inevitably, do something that will — or should, in a sane world — trigger this sanction against him, and that will lead him to act out even more than before. His own actions become weapons to use against him. If and as the country (which hasn’t been paying enough attention yet) sees how irresponsible and out of control he is, they will be more and more reluctant to put him back in any position of power, much less power over our nuclear weapons. Our responsibility is to make the country wake up to what he is like. Fortunately for us, he is making it easier for us each time he opens his mouth.
