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Welcome back, Deadline: Legal Newsletter readers. It was a historic week in the first-ever criminal trial of a former U.S. president, with Donald Trump being held in criminal contempt. Judge Juan Merchan hasn’t jailed him yet over his repeated gag order violations — and prosecutors haven’t asked him to yet — but the threat of incarceration looms as we enter the third week of testimony.
This second week made progress on the state’s election-interference theory. Two of the biggest witnesses this week were former Trump aide Hope Hicks and Keith Davidson, a lawyer who represented alleged hush money recipients Karen McDougal and Stormy Daniels. Both Davidson and Hicks testified to, among other things, the impact of the infamous “Access Hollywood” tape, which is taking on its own starring role in the prosecution even if the recording itself doesn’t come into evidence.
“It wasn’t until ‘Access Hollywood’ that interest sort of reached a crescendo."
— trial witness keith davidson
A “damaging development” is how Hicks described the tape that was released just ahead of the 2016 election. The recording showed Trump a decade earlier bragging about being able to grab women by their genitals. “It wasn’t until ‘Access Hollywood’ that interest sort of reached a crescendo,” Davidson testified, explaining how the deal went down to secure Daniels’ silence as Trump successfully sought the White House. Expect to keep hearing about the tape as the case goes on.
Trump also broke new ground this week by earning the criminal contempt finding from Merchan. The judge said in a ruling Tuesday that Trump violated the gag order nine times. Merchan imposed the maximum fines available of $9,000 total and warned the defendant that jail may be next. The judge held yet another hearing over more possible violations Thursday, but prosecutors still didn’t press for jail “yet,” they said, to avoid disrupting the proceeding.
One wonders how much longer they — and ultimately, Merchan — can delay the seeming inevitable incarceration of a defendant who prosecutors allege keeps violating the court order.
The Supreme Court is done with oral arguments after last week’s immunity hearing in Trump’s case. But the justices issued orders in pending appeals, blocking former Trump White House adviser Peter Navarro’s bid to get out of jail, turning away Elon Musk’s appeal against the SEC, and declining a free speech challenge to a Texas law requiring age verification for pornography sites, which makes adults submit personal information.
The justices are set to issue opinions this coming week, on Thursday. Will we see the Trump immunity decision then? That would surprise me, partly because they have much else to decide as well.
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