Donald Trump Isn't Going to Jail for Contempt Any Time Soon

Contempt of court is when someone acts against, disrespects, or blocks the court's authority and respectability. There are types of contempt: civil and criminal. Civil contempt happens when someone doesn't follow a court's order, like not paying child support or not showing up to testify despite being called. Criminal contempt is about actions that interfere with the court's operations or undermine its power, like being rude to judges, causing disruptions during a trial, sending social media messages that are clearly over the line, or ignoring court procedures.

The consequences of being found in contempt of court can vary; it depends on the contempt involved, the situation, and the judge. Penalties can include fines, being ordered to cover the other party's legal costs, short-term detention, or even prison time for more serious cases of criminal contempt.

If someone continuously defies the court and doesn't change their behavior, the punishments are designed to get tougher. At first, the court might just issue a warning and some fines. But if the defiance keeps up, it might impose longer detentions. In really extreme cases, where the contempt seriously threatens the court's operations or the rule of law, the penalties can be quite harsh, including long-term imprisonment.

It's important to remember that the goal of using contempt powers is to maintain the court's respect and effectiveness, not just to punish people. Courts don't use these powers lightly. They only bring up contempt charges when absolutely necessary to keep the proceedings running smoothly and respectfully. This is all about balancing the need to protect the legal process while ensuring that everyone's rights are respected. In handling contempt cases, especially severe or long-standing ones, courts are very careful to follow due process and make sure any penalties fit the offense, maintaining a fair balance between authority and accountability in the judiciary.

So that's the foundation upon which we find ourselves literally today in the Donald J. Trump criminal hush money trial, the first basket containing some of the 88 felonies with which he is criminally charged.

That's a lot to read and digest, particularly when all we are collectively concerned about now is what the contempt endgame will be here with former President Trump.

As Atlanta civil rights lawyer Latrice Latin Alexander told me on Thursday morning, "Every single one of my defendants would have already been locked up for the behavior we have seen so far from defendant Trump. That's just harsh reality layered on top of the 'equal justice for all' illusion."

There are also practical legal considerations at play here. Aside from the fact that Judge Juan Merchan is bound by a maximum penalty of $1,000 for each instance of contempt, we have two other critically important things at play.

The first is an experienced and wise judge giving the Trump defense as little as possible to hold out to an appellate court as legal error. So being extremely small "c" conservative here is an intelligent and prudent strategy for the judge. In other words, don't rock the boat with any kind of punishment or sanction above that $1,000 per event threshold and you're staying under the radar of even the pickiest appellate court judges.

The second piece is even more important. Given the fact that Trump is such a polarizing figure and is historically proven to have that rare ability to invite and incite people to political action, including active violence and insurrection, putting him behind bars, even overnight, is sure to motivate the more fringe elements of his base to at least consider what they view as civic action and the rest of us see as criminal acts.

Something that was raised by former New York State Supreme Court Justice Jill Konviser on CNN on Thursday morning during the most recent contempt hearing was why the gag order wouldn't apply to everybody in the Trump hush money case, including witnesses, such as Michael Cohen. The answer is simple; there is only one criminal defendant and that is Donald Trump.

As Merchan wrote in his order on Tuesday, there is certainly the possibility that anyone involved in the trial can use the gag order against former President Trump as both a shield and a sword and, as a result, the judge could certainly consider a gag order against all parties, but that would be truly exceptional, and I don't believe it will happen here

So, while it may be tempting for all of us who believe in the Rule of Law to cheer on Merchan, to borrow the meme, to "lock him up," given the practical, legal, and political realities this is probably infinitely more trouble than it's worth.

So, while I don't gamble, my prediction is that while Merchan has told defendant Trump that if he keeps continuing to act in contempt of court that the court won't tolerate it, the court will actually tolerate it.

If anybody is reading this and thinking, hey, that's not a great lesson in civics, you're absolutely right. This isn't the way things should work because the way they should work is that any defendant in Donald J Trump's chair should be treated the exact same way. But that's not the world in which we live, it wasn't the world in which we lived yesterday, and as the Trump hush money trial event is underlining and highlighting, this isn't going to be the world in which we live tomorrow.

A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief strategy officer for Amplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Newsweek, Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, Abogados, Today's Esquire, TechCrunch, The Hill, BuzzFeed, Venture Beat, The Independent, Fortune China, Yahoo!,ABA Journal, Law.com, The Boston Globe, and many other leading publications across the globe.

The views expressed in this article are the writer's own