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Why Trump might avoid jail over his surrogates’ words despite gag order

First is the question of whether Manhattan prosecutors can make the case that Trump should be jailed, if they (and the judge) even want to at this late stage in the trial.

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Since Donald Trump was held in contempt for his 10th gag order violation last week, Manhattan prosecutors haven’t alleged that any other statements by the former president have violated it. But Republican politicians who support Trump have made statements that would violate the court order had the defendant made them himself.

And though the order makes Trump liable for certain third-party statements, it’s far from clear that he’ll get in trouble for these. There are both legal and practical reasons for this, despite double-digit violations of a court order by the “law and order” party’s presumptive nominee himself — and now possibly by way of those he's claimed as “surrogates” himself.

As a reminder, the order bars the defendant from “making or directing others to make public statements” against witnesses, jurors, counsel (other than Manhattan District Attorney Alvin Bragg), court staff, and family members of the judge and the DA. When it comes to other peoples' statements then, the question is whether Trump “direct[ed]” them. While recent attacks from Trump-aligned politicians seem clearly in service of their de facto leader, that may be different from Trump directing them.

To be sure, the defendant himself referred to his “surrogates” speaking “very beautifully” about the “biggest scam they’ve ever seen.” Common sense would dictate — and Trump’s own words confirm — he has at least endorsed words that would violate the gag order if he said them. But does that mean that he’s directing them — as opposed to, say, encouraging or condoning them or the like? How fine a distinction would Judge Juan Merchan draw?

In some ways, it mirrors the underlying case of falsifying business records itself, where Trump appears to be obviously involved in the alleged scheme but the unfolding question in court is the extent of direct evidence.

Prosecutors could try to make a case for Trump’s direct involvement in this apparent attempted end run around the gag order. They haven’t been shy about claiming violations so far. Indeed, when Merchan found Trump’s 10th violation, the judge only agreed with prosecutors on one of the then-four most recent violations alleged by prosecutors.

But in addition to the potential legal challenge of making that case, prosecutors may have practical considerations that lead to no action here, however deserved.

Remember where we are in the life of this gag order. According to Merchan’s latest ruling, Trump’s next violation — his 11th! — would actually risk jail time (up to 30 days, by law) instead of just fines. And with Trump’s latest violation, prosecutors said they weren’t seeking jail yet because they didn’t want to disrupt proceedings. So for the next violation(s), for prosecutors and the judge to have credibility and for the order to have value, the state would need to seek jail and the judge would need to impose it. Given the potential ambiguity in holding Trump liable for third-party statements, both the state and the judge may want to avoid taking that step.

A related consideration is where we are in the trial. With Michael Cohen on the stand, prosecutors are close to resting their case. If, as they said, the reason that they haven’t sought jail yet has been to prevent disruption, then they may be even less likely to allege further violations at this late stage, unless they feel that they truly have to. They — and probably Merchan, too — may want to get through the trial without the complication (as the state has deemed it) of jailing this defendant. That doesn’t mean that prosecutors won’t or shouldn’t try, but if they don’t, then these factors may help explain their inaction.

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