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How Judges Restrain Trump: Gag Orders, Fines and Possible Jail Time

Donald J. Trump has twice run afoul of a narrow gag order placed on him by the judge overseeing his civil fraud trial in New York, and has been fined a total of $15,000.

It’s a rounding error for a former president who measures his net worth in the billions. But if Mr. Trump continues to violate the order, which bars him from attacking the judge’s staff, the punishments could intensify. The judge, Arthur F. Engoron, has warned of harsher fines, contempt of court and possible imprisonment.

“This court is way beyond the ‘warning’ stage,” Justice Engoron wrote last week when he levied the first $5,000 punishment, which he called “nominal.”

This week, when Mr. Trump appeared to criticize Justice Engoron’s law clerk to reporters, the judge summoned the former president to the witness stand. Mr. Trump denied that his veiled remarks had referred to the clerk, but in an order on Thursday, Justice Engoron fined Mr. Trump $10,000, and declared that his testimony “rings hollow and untrue.”

Mr. Trump must pay the first fine by early November — 10 days from when it was issued — and he has 30 days to pay the second.

The civil case stems from a lawsuit brought by the New York attorney general, Letitia James, who accused Mr. Trump of fraudulently inflating his net worth to receive better treatment from banks and insurers.

Mr. Trump is also contending with four criminal indictments — and a second gag order. The federal judge overseeing a criminal case in Washington, where Mr. Trump is accused of conspiring to overturn the 2020 election, restricted his ability to target witnesses in the matter, prosecutors or her own court staff.

The judge, Tanya S. Chutkan, put the order on hold for a week while Mr. Trump appeals it. For now, Mr. Trump has not appealed Justice Engoron’s order, though a lawyer for Mr. Trump, Christopher M. Kise, said he was evaluating a potential appeal. “We have significant concerns about the constitutionality of limiting President Trump’s right to comment on what he observes in the courtroom,” Mr. Kise said.

Why are there gag orders?

Justice Engoron imposed his order on Oct. 3, the second day of the trial, after the former president attacked the law clerk, Allison Greenfield, on social media. Mr. Trump posted a picture of her with Senator Chuck Schumer, accusing her of partisanship and saying she was “running this case against me.”

Shortly thereafter, the judge barred him from commenting, posting or emailing about members of his staff.

The judge overseeing Mr. Trump’s civil fraud trial in New York, Arthur F. Engoron, has fined the former president a total of $15,000.Credit…Doug Mills/The New York Times

Though the order is limited, Mr. Trump has violated it twice in less than a week. The first violation was inadvertent: A version of his social media post remained on Mr. Trump’s campaign website for weeks. When Justice Engoron discovered that it was still up, he fined the former president.

On Wednesday, Mr. Trump went further: “This judge is a very partisan judge,” he told reporters. “With a person who’s very partisan sitting alongside of him — perhaps even much more partisan than he is.”

Judge Chutkan issued her gag order this month after prosecutors in the office of the special counsel, Jack Smith, complained about Mr. Trump’s “near daily” social media attacks against their boss, whom Mr. Trump has repeatedly called “deranged.” The former president also attacked several people who might appear as witnesses, including Gen. Mark A. Milley, who is the former chairman of the Joint Chiefs of Staff, and former Vice President Mike Pence.

How much money would it take for Trump to care?

More than $15,000.

Although Mr. Trump is fond of bragging about his wealth, he is loath to spend money. If history is a guide, Mr. Trump would most likely rein in his comments about Ms. Greenfield if he were to rack up tens of thousands of dollars in fines.

When Justice Engoron held Mr. Trump in contempt last year for failing to fully cooperate with a subpoena from Ms. James, Mr. Trump complied after the judge imposed a $110,000 fine.

When Justice Engoron imposed the gag order, Mr. Trump quickly backed down and removed the offending post. Even his remarks Wednesday were a toned-down version of earlier attacks.

What other powers do the judges have?

Judges could more forcefully rebuke Mr. Trump and hold him in contempt. If all else fails, the nuclear option — jail — would most likely get the job done.

But that would prompt an uproar from Mr. Trump’s supporters and cause a logistical nightmare for the court system. Justice Engoron is likely to exhaust every other punishment before jailing Mr. Trump.

On Wednesday, prosecutors under Mr. Smith appeared to lay groundwork for a judge to act against him. They asked Judge Chutkan to reconsider the lenient conditions of Mr. Trump’s release from custody after his indictment, suggesting that they might return with a request for punishment.

The judge in a Washington criminal case has said she could speed up Mr. Trump’s trial if he continues discussing potential witnesses.Credit…Mandel Ngan/Agence France-Presse — Getty Images

Judge Chutkan has another card to play: expediting Mr. Trump’s trial.

Mr. Trump is seeking to delay it until well after the 2024 election. Judge Chutkan has scheduled it for March, but has said that if Mr. Trump continues to threaten people involved, she might move faster to preserve the proceeding’s integrity.

What about free speech?

Mr. Trump’s lawyers have insisted that the orders violate his rights — particularly given that he is making a third run for the White House. John Lauro, who represents him in the federal election interference case, wrote that Judge Chutkan’s order “violates virtually every fundamental principle of our First Amendment jurisprudence.”

“No court in American history has imposed a gag order on a criminal defendant who is campaigning for public office — least of all, on the leading candidate for president of the United States,” he wrote.

Judge Chutkan and Justice Engoron have both said that Mr. Trump’s rights as a candidate must be weighed against the danger he poses to those he attacks.

Judge Chutkan noted that the First Amendment did not permit Mr. Trump “to launch a pretrial smear campaign” against people involved in the case, adding, “No other defendant would be allowed to do so.”

Justice Engoron struck a similar note in court on Thursday.

“Anyone can run for president, but I am going to protect my staff,” he said. “I don’t think that it is impinging on someone’s First Amendment rights to protect my staff.”

But in a so-called friend-of-the-court brief, the American Civil Liberties Union supported Mr. Trump, calling the gag order in his federal case “impermissibly broad” and “impermissibly vague.”

“Donald Trump has said many things. Much that he has said has been patently false and has caused great harm to countless individuals, as well as to the republic itself,” the A.C.L.U. wrote. “But Trump retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say.”

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