Jailing Trump for contempt of court could backfire, says national security analyst

Sheena Goodyear · CBC Radio

· Posted: May 06, 2024 5:55 PM EDT | Last Updated: 11 hours ago

While jailing Donald Trump might be the only way to stop him from violating a gag order during his hush money trial, it could also play right into the former president's hands, says a national security analyst.

The former U.S. president and presumptive 2024 Republican nominee was held contempt of court for the 10th time during his criminal trial on Monday, and the judge warned further violations could land him behind bars.

"We've got to consider the possibility that Trump actually wants to spend a night in lockup," Frank Figliuzzi, a former FBI assistant director-turned-NBC analyst, told As It Happens host Nil Köksal.

"Either because he thinks things are going very poorly in the trial, or because he thinks that will add to his victimization mentality — the perception of his followers that he's being silenced."

Justice Juan Merchan slapped fined Trump $1,000 US fine on Monday for disparaging the jury during a media interview.

"I do not want to impose a jail sanction and have done everything I can to avoid doing so," Merchan told Trump before the jury entered the courtroom. 

"But I will if necessary."

Trump says 1st amendment violated

Trump is currently on trial in New York on 34 state felony charges for allegedly falsifying business records to cover up details of his sex life in the run-up to the 2016 election.

It's one of four criminal cases against Trump, and potentially the only one to make it to trial before the November presidential election. He has pleaded not guilty to all charges. 

During the trial, Trump has been barred from making any statements that interfere with the case about jurors, witnesses and families of the judge and prosecutors. 

Last week, Merchan fined Trump $9,000 US for nine social media posts that he ruled had violated the gag order.

Monday's fine stemmed from Trump's April 22 interview with the right-wing media outlet Real America's Voice, in which he claimed the jury is made up of "95 per cent Democrats."

Figliuzzi says fines are nothing more than "lunch money" for Trump.

"This is the challenge of how to deter him," he said. "I think the only thing left is jail."

Trump, meanwhile, says the gag order limits his ability to make his case to voters as he campaigns to take back the presidency.

"He's taken away my constitutional right to speak," Trump said of Merchan outside the courtroom Monday, before the day's proceedings kicked off. 

What the jurors heard Monday

The trial centres around allegations that Trump had his then-lawyer, Michael Cohen, paid porn star Stormy Daniels $130,000 US to stay quiet about her affair with Trump ahead of the 2016 election. 

Trump denies any wrongdoing and says he never had sex with Daniels.

Prosecutors on Monday showed jurors business records that documented payments totalling $420,000 US from the Trump Organization, Trump's holdings company, to Cohen.

Those payments were listed as legal fees, but prosecutors say they were actually meant to reimburse Cohen for the money he paid Daniels along with other expenses he had incurred in the process, as well as a year-end bonus.

Jeffrey McConney, a former controller in the Trump Organization, testified that the company's top finance official, Allen Weisselberg, told him the payments were reimbursements, not legal fees.

The case is the first criminal trial of a former U.S. president. If found guilty, Trump could face up to four years in prison, though defendants typically face fines and probation.

If he were to be jailed — even briefly for violating the gag order — it would be unprecedented for someone of Trump's stature.

"The last thing I want to do is put you in jail. You are the former president of the United States and possibly the next president as well," Merchan told Trump on Monday.

"There are many reasons why incarceration is truly a last resort for me. To take that step would be disruptive to these proceedings."

As Figliuzzi watches the trial unfold, he says he worries, from a national security perspective, what would happen if Merchan makes good on this threats. 

"I look at it as potentially further stoking violence when Trump's base perceives that he's being totally silenced and somehow prevented from campaigning," Figliuzzi said.

What's more, he says it could undermine public trust in the justice system and democratic institutions. 

"I fear that putting a presidential candidate in jail, even for one night for contempt, could be perceived as further eroding people's trust in the system — you know, that the system is against Trump, the system is against the people's choice for a candidate," he said.

"This is all why you can sense the dismay being experienced by Judge Merchan. This is truly a last resort."