District Attorney Alvin Bragg’s motion to hold President Trump in contempt surfaces the possibility that the criminal defendant could see the inside of a prison cell even before a jury hears opening statements in his criminal hush money case.

The motion accuses Mr. Trump of having “willfully violated this Court’s order by publishing several social media posts attacking two known witnesses — Michael Cohen and Stormy Daniels.” Cohen, Mr. Trump’s erstwhile attorney, made the payments that are at the center of this case. Ms. Daniels, whose legal name is Stephanie Clifford, is the adult film star with whom Cohen parlayed.  

The case for contempt rests on three social media posts from Mr. Trump. The first, a repost from the larcenous lawyer Michael Avenatti, who is currently incarcerated, reflected, “We can’t be hypocrites when it comes to the 1st Amendment. It is outrageous that Cohen and Daniels can do countless TV interviews, post on social, & make $$ on bogus documentaries — all by talking s— about Trump — but he’s gagged and threatened with jail.” 

Mr. Trump on Truth Social added his own gloss to that quotation, noting, “Thank you to Michael Avenatti—for revealing the truth about two sleaze bags who have, with their lies and misrepresentations, cost our Country dearly!” Mr. Trump also reposted a purportedly “Official Statement of Stormy Daniels” captioned, “LOOK WHAT WAS JUST FOUND! WILL THE FAKE NEWS REPORT IT.” 

In the final post, Mr. Trump refers to a former prosecutor in Mr. Bragg’s  office. He asks, “Has Mark POMERANTZ been prosecuted for his terrible acts in and out of the D.A.’s Office. Has disgraced attorney and felon Michael Cohen been prosecuted for LYING? Only TRUMP people get prosecuted by this Judge and these thugs! A dark day for our Country. MAGA2024!!!”  

The request made to Judge Juan Merchan comes after the jurist barred Mr. Trump from making “public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.” The gag order also covered court staff and family members, though not Mr. Bragg or Judge Merchan themselves. The order was expanded to protect Judge Merchan’s daughter, Loren, a Democratic operative whom Mr. Trump accuses of hating him.

Gag orders, like all prior restraints on speech, are constitutionally disfavored. Judge Merchan, though, found that Mr. Trump’s reflections could pose a “very real” threat to the “integrity of the judicial proceedings.” Mr. Bragg now contends that this fear has come to pass and asks the judge to hold Mr. Trump “in criminal contempt for willfully disobeying a lawful mandate.”

Mr. Trump was previously fined a total of $15,000 for violating the gag order in the civil lawsuit brought against him and his companies by the New York attorney general, Letitia James. Mr. Trump was penalized, and threatened with jail, for repeatedly criticizing Judge Arthur Engoron’s principal law clerk, Allison Greenfield. 

Mr. Trump’s legal team repeatedly accused Ms. Greenfield, who sat next to Judge Engoron on the bench, of “co-judging” and “rolling her eyes.” Mr. Trump also claimed, without substantiation, that Ms. Greenfield was Senator Schumer’s “girlfriend.” 

Mr. Bragg writes to Judge Merchan that Mr. Trump is “not above the law, and he cannot simply disregard judicial orders that upset him.” Mr. Bragg, at this inchoate stage of the case, nevertheless urges Judge Merchan to “preserve the rule of law” in the face of what he calls Mr. Trump’s “extreme and deliberate provocations.”

For Mr. Trump to be held in contempt, Mr. Bragg would have to prove beyond a reasonable doubt that there was a lawful and unequivocal court order, that Mr. Trump violated it, and that he did so willfully. The prosecutor argues that Mr. Trump’s violation was so willful as to amount to a “deliberate strategy to impede this criminal trial.”

Mr. Bragg argues that Mr. Trump’s alleged violations are intentional because the 45th president has “shown his ability to understand the significant leeway left to him by making multiple social media posts and other public statements that criticize the criminal trial” without violating the order. That puts into sharp relief the “separate, specific attacks” on Cohen and Ms. Clifford. 

New York law allows judges to punish contempt with a fine of up to $1,000 or up to 30 days behind bars, or both. Mr. Bragg asks Judge Merchan to fine Mr. Trump $3,000 for the three posts, treating each one as an independent violation. The prosecutor also wants a judicial warning that prison is a possibility. If Mr. Trump persists in his criticisms of Ms. Clifford and Cohen, a month’s incarceration could await.