What happens if it happens

Donald Trump attired in a roomy orange jumpsuit, that is.

Judge Juan Merchan cited Trump for contempt again today, this time for his remark in a recent interview that the jury in his trial was “picked so fast” it is comprised of “95 percent democrats.”  Merchan ordered him to take the quote down from his campaign website by 2:15 today and told Trump that his statement created “the specter of fear for the safety of the jurors and of their loved ones.”

“It appears that the $1,000 fines are not serving as a deterrent,” Merchan told Trump.  “The last thing I want to do is to put you in jail. You are the former president of the United States, and possibly the next president as well. There are many reasons why incarceration is truly a last resort for you. But at the end of the day, I have a job to do.” 

In his order finding Trump in contempt, Merchan wrote, “Because this is now the tenth time that this Court has found defendant in criminal contempt, spanning three separate motions, it is apparent that monetary fines have not and will not, suffice to deter defendant from violating this Court's lawful orders. Defendant is hereby put on notice that if appropriate, unwarranted future violations of its lawful orders will be punishable by incarceration.”

Merchan added that Trump’s “continued willful violations of this court’s orders threaten the administration of justice and constitute a direct attack on the rule of law. I cannot allow that to continue.”

Contempt of court violations are punishable by fines, which Trump has already been assessed, and up to 30 days in jail.  So, the question is, how would it work, jailing a defendant who as the former president of the United States has a Secret Service detail protecting him?

Well, if Merchan finds Trump in contempt for an eleventh time and sentences him to jail, Trump’s lawyers would immediately file an appeal.  Trump’s team of lawyers probably already have an appeal written for a contempt citation that would include a jail sentence.  The appeal would ask for a stay of the judge’s order pending a hearing. 

In the meantime, Merchan could probably order Trump to be held in a holding cell located behind Merchan’s courtroom.  (Every courtroom in the Manhattan criminal courts building has such a holding cell.)

Here’s where it gets interesting.  Judges are frequently described as “all powerful” in their courtrooms.  What happens within a courtroom as it occurs is known only to the judge, court employees, lawyers for the defendant and prosecution and members of the press and public who are present in the court.  If Trump were to shout at the judge or a witness…say, Michael Cohen, when he soon takes the stand…those people would be the only witnesses to the incident.  Trump’s appeal would be filed with the Appellate Division, but those judges would have to wait until they receive the court record detailing the reasons for Trump’s incarceration.  Judges tend to support their fellow judges.  It would not be out of character for the judges of the Appellate Division to allow Judge Merchan’s finding of contempt and punishment to stand at least until the appeal and the record of the contempt finding were received at the Appellate Division and recorded. 

Judges don’t live in bubbles.  All the judges of the Appellate Division have read news accounts of Trump’s violations of Judge Merchan’s contempt orders, all ten of them at this point.  Many of the appeals judges started out as judges in New York’s Supreme Courts, the name for the ordinary criminal and civil courts in the state.  At least some of the appeals judges have dealt with unruly defendants or plaintiffs and had to issue findings of contempt, so they know what it’s like to have their own courts disrupted and their own orders disobeyed.

I think it’s reasonable to assume that they don’t like it any more than Judge Merchan does.

If Merchan orders Trump confined in the holding cell, the judge would order Trump taken into custody.  Ordinarily, this would be accomplished by New York State Court Officers, who under law are deemed “peace officers” and are entitled to carry firearms, placing Trump under arrest, handcuffing him, and escorting him from the courtroom.  The fact that Secret Service agents are present in the courtroom with Trump might alter that proceeding somewhat, with the Secret Service detail guaranteeing Trump’s security, making the handcuffs unnecessary.

Outside of the courtroom and before being confined in the holding cell, a defendant would ordinarily be relieved of his wallet and other valuables, and his tie and belt would be taken from him, along with his shoelaces, so he would not be able to commit suicide.  The presence of the Secret Service agents would probably also guarantee that Trump would not commit suicide, so he might be allowed to keep his belt, tie and shoelaces.

It gets even more interesting if the Appellate Division takes Trump’s appeal under advisement and allows his temporary incarceration.  Where would that happen?  Well, there is the holding cell adjoining Judge Merchan’s courtroom.  Additionally, the Criminal Courts Building in Manhattan is a massive thing with space for accommodating more than 500 prisoners within the building.   According to a 1990 New York Times story, under plans approved by the State Office of Court Administration and then Mayor David N. Dinkins, 250 new holding cells were to be added to the 278 cells that existed in the Criminal Courts Building.  The cells were to be built in a 10,000 square foot area in the building’s basement.

I couldn’t find a story confirming that the expansion of the holding cells in the Criminal Courts Building had taken place, but I think we can assume that there is plenty of space for Trump to be held overnight in an area of the building’s holding cells that would be safe enough for a former president and his Secret Service detail, making his transfer to Rikers Island unnecessary.

If they hold Trump overnight in a holding cell in the Criminal Courts Building, he would be logged into the system like any other prisoner.  His height and weight would be measured and recorded as a public record.  He would be issued whatever prison garb that is provided to prisoners while they are held in the Criminal Courts Building.  Some sort of sleeping accommodations would be provided for Trump and his Secret Service detail, along with food for an evening meal and breakfast.

Donald Trump’s electronic devices would be confiscated along with his valuables and clothing.  Donald Trump would be without the ability to contact the outside world unless he requested permission to use the pay phones that are available to every other prisoner in the holding cells of the Criminal Courts Building.  He could request to meet with his lawyers, in which case, he would be provided with a secure room free of listening devices or surveillance cameras.

In the morning, after a publicly-funded breakfast and maybe even a Diet Coke brought in by his lawyers – if his jailers allow it – Trump’s clothing would be returned to him, he would get dressed, and he would be led upstairs to Judge Merchan’s courtroom for the next day of his trial.

If a hearing for Trump’s appeal is approved by the Appellate Division, Trump would be released on bail and probably once again cautioned by Judge Merchan not to violate the conditions of his release, which would no doubt include abiding by Merchan’s gag order forbidding him from speaking about witnesses or court employees. 

If he decides that the rule of law doesn’t apply to him and he violates Judge Merchan’s orders again, it’s a certainty that the Appellate Division would allow the judge’s sentence to be carried out and Trump to be confined pending the hearing of his appeal.  It might be a secure wing of Rikers Island prison where Trump spends his next night, or they might return him to quarters in the basement of the Criminal Courts Building.

Either way, he won’t be spending his nights in a gold-plated eyesore of a bedroom in Trump Tower.