Donald Trump can avoid earning more criminal exposure in his New York hush money prosecution. All he has to do is follow a judge’s orders and behave on social media.
You can all start placing your bets now.
A hearing scheduled for Tuesday afternoon will set the stage for this additional legal danger, courtesy of Manhattan District Attorney Alvin Bragg’s office. Judge Juan Merchan, who’s overseeing the historic case, is poised to warn Trump, over Zoom, about the protective order that the judge imposed earlier this month. The order restricts Trump’s access to, and use of, discovery material that his legal team receives from prosecutors ahead of a potential trial next year. Among those restrictions are that Trump can’t share information over social media, a forum in which the 2024 Republican candidate freely slings venomous threats against various prosecutors, plaintiffs and other perceived tormentors.
Should Trump violate the protective order, Bragg has already signaled that his office is eyeing a contempt charge. In a filing last month pushing for the protective order, prosecutors urged the judge to advise Trump of the order’s details on the record:
Should Defendant violate the terms of any protective order issued by the Court, the People may seek to enforce its terms by initiating a prosecution for Criminal Contempt in the Second Degree, P.L. § 215.50(3). In advancing such a prosecution, the People will be required to show that Defendant had knowledge of the contents of the order.
If Trump violates the order, prosecutors can point to Tuesday’s hearing to support a contempt charge. (NBC News has reached out to lawyers for Trump and a spokesperson for the DA’s office for comment about Tuesday’s hearing.)
To be sure, the protective order isn’t a gag order. The GOP candidate can still talk about his case; he just has to abide by rules like other defendants do every day. In fact, he’s probably being treated better than average and likely is only restricted thanks to his unusually antisocial behavior. Indeed, Trump couldn’t make it through the recent E. Jean Carroll civil trial — in which a jury found him liable for sexual abuse and defamation — without the judge warning his legal team about their client’s inappropriate social media postings.
"Right after [Carroll's defamation suit win] Donald Trump comes out and repeats the allegations. And this time he does it now that there has even been a jury finding that he defamed her" – @BarbMcQuade w/ @NicolleDWallace pic.twitter.com/y1IaJUZYyO
— Deadline White House (@DeadlineWH) May 22, 2023
And in the Mar-a-Lago documents case, Trump reportedly was specifically warned about not retaining classified material, according to The Guardian, but he nonetheless may not have heeded that warning.
"[Trump] knew that in the face of these challenges to get the material to where it needed to be… he was gonna turn around and say no it's mine… and there were tons of people around him willing to go that distance" – @BasilSmiklePhD w/ @NicolleDWallace pic.twitter.com/qJHCKAUrGs
— Deadline White House (@DeadlineWH) May 22, 2023
But if there’s a time to abide by rules, it’s in the face of a clear contempt charge. Importantly, it’s not just the fact of more criminal exposure, but exposure to a crime that could be relatively easy to prove. To be guilty of criminal contempt in the second degree — the charge flagged in last month’s filing from Bragg — a defendant just needs to intentionally disobey a court order. It’s a much simpler charge than the 34-count falsifying business records case that brought Trump to court to begin with. (The former president has denied all wrongdoing.)
If Trump plays his cards wrong, he could wind up handing prosecutors a case that is much more straightforward.
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