Politics Foreign Affairs Culture Fellows Program

Why Doesn’t Trump Seem to Care?

The former president had a busy day in court, but he isn’t acting like a man in trouble.

Credit: a katz

It was a busy day in court for Donald Trump.

In Washington on October 25, Special Counsel Jack Smith asked the court to reinstate a temporary gag order, this time with jail as the penalty, after Donald Trump called the former White House Chief of Staff Mark Meadows (and, by extension, former allies who have cut deals in his election interference case elsewhere in Georgia) a weakling and coward if he agreed to testify in exchange for immunity.


Trump had been under an earlier gag order which barred him from disparaging prosecutors, court staff, and potential witnesses in a pattern that the court filing called “targeting.” The fear was Trump was calling out those he wanted MAGA supporters to go after. Smith urged Judge Tanya Chutkan to “modify the defendant’s conditions of release by making compliance with the Order a condition." Smith was ultimately successful.

On the same day, October 25, in response to his violation of a separate New York court gag order, Judge Arthur Engoron ordered the former president to testify over an insult Trump threw at the judge’s law clerk. The judge found Trump guilty of violating his gag order and ordered Trump to pay a $10,000 fine on top of an earlier $5,000 one. Trump stormed out of the courtroom, his somewhat bewildered Secret Service in tow. Trump technically remains free only on bail.

Pundits asked if Trump is actually trying to antagonize judges and lose both cases. Or could there be some other reason for Trump’s apparent self-sabotage?

  • Trump may be breaking up under the strain. One hates even to go near the “Trump is insane” 25th Amendment crowd, who think they can judge someone’s mental state from afar, but one has to allow for the possibility that the stress of having his very existence and ego challenged (the New York trial after, all concerns, Trump’s actual net worth and status as a real estate kingpin) by small-time mooks like a judge and his clerk may have gotten to Trump. We’re seeing it play out as he strives to control his temper (hence the storming out of the courtroom.)

    If this is even in part an explanation for Trump’s counterproductive behavior in court, it suggests a dangerous circumstance, adding too much unpredictability into already tense situations. Perhaps Trump simply can’t stop himself. He’s “spent a lifetime attacking those who don’t accommodate him,” and he’s not able to quit now.
  • Trump could easily believe none of this matters, certain he will be elected president in November 2024 and be in a position to pardon himself and any others convicted along the way. In Trump’s mind, this is all or nothing and the little details, such as the outcome of a specific trial, matter not.
  • It’s all about the appeal, part I. Trump knows he will lose the case in front of Engoron, who has already substantively ruled Trump guilty and is holding the current trial sessions primarily to establish the penalty. The judge calls a Trump response he does not like a “lie”; he has also declared that “as a trier of fact, I find that the witness is not credible... hollow and untrue.”

    By egging on Engoron, Trump is setting up an appeal claiming the judge is biased against him. It is unclear whether this is productive or even needed; there is already plenty to work with in the guise of former Trump attorney Michael Cohen, a star prosecution witness who is also a sworn enemy of Trump, a convicted felon, and serial liar singing for his supper. Cohen’s testimony is weak, claiming the former president never directly asked him to over-value Trump Organization assets, but instead implied somehow telepathically that he do so.
  • It’s all about the appeal, part II. The judges’ gag orders against Trump rub rough against the First Amendment, and will form the basis of appeals independent of the trial content themselves. The American Civil Liberties Union (ACLU), no friend of Donald Trump, argues the gag order imposed by Chutkan in Washington barring Trump from making public statements about special counsel Jack Smith, the defense counsel, or members of the court violates the Constitution’s free speech guarantees. “No modern-day president did more damage to civil liberties and civil rights than President Trump,” the group wrote in a press release. “But if we allow his free speech rights to be abridged, we know that other unpopular voices—even ones we agree with—will also be silenced.”

    Specifically, the ACLU argued Chutkan's order is too vague, too broad, and not sufficiently justified. Trump made many “patently false” statements that have “caused great harm to countless individuals,” the group wrote. But he nevertheless “retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say.”

    Prior restraint on Trump’s speech must be “precisely defined and narrowly tailored,” the ACLU wrote, arguing that Chutkan’s order “fails that test.” For example, the prohibition on making public statements that “target” certain individuals is “unconstitutionally vague.” Trump “cannot possibly know what he is permitted to say, and what he is not.”
  • It's all about the appeal, part III. The substance of an appeal is irrelevant, provided it can be dragged out past the November 2024 election. It is easy to imagine a “throw it all against the wall and see what sticks” approach to buy time. An appeals court could just as easily applaud the two judges for showing restraint when they might have thrown Trump in jail for contempt. No matter, so long as it all chews up the space until the election.

Trump looks like a man who simply does not care what happens with the current trials, or any of the others upcoming. He is both convinced the system is fully unfair and equally aware that the more trouble he seems to get into the faster his poll numbers rise. Each courtroom defeat, small and procedural or a full-on guilty verdict, simply fans the flames for rally crowds. The cash penalties levied by Engoron and Chutkan for violating gag orders have little meaning.

But Trump actually being jailed for violating a gag order would grant him official martyr status. Within a week of his release, Trump will be calling himself a jailed freedom-fighter like Martin Luther King Jr. and Nelson Mandela. He could then literally test an earlier boast by shooting someone in the middle of Fifth Avenue without losing any supporters, or perhaps, with MAGA cheers in the background, simply flip off one of the judges who dare seek to decide his fate.