October 2, 2023

Former US President Donald Trump speaks during a 2024 election campaign rally in Waco, Texas, March 25, 2023.  (Photo by SUZANNE CORDEIRO/AFP via Getty Images)

Former President Donald Trump will be arraigned in his criminal case on Tuesday afternoon. Then, just hours later, he’s planning to hold a press conference. 

Together, those two events crystalize his brand new legal peril: Now that he’s been criminally charged, lambasting prosecutors with incendiary insults in his usual style just became a lot more dangerous than ever before. It could even land him in jail. 

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Trump will likely face a gag order from the judge overseeing his case, former prosecutors told VICE News, and violating that order could mean contempt of court—which could bring  jail time. New York Supreme Court Judge Juan Merchan, who is overseeing Trump’s case, is likely to give Trump multiple chances to walk the line before hitting him with penalties. But his tolerance may not be limitless. 

“I will be very surprised if the issue of a gag order is not raised and seriously discussed at the arraignment,” said Robert Gottlieb, a former assistant district attorney in the Manhattan District Attorney’s office, which is the prosecutorial office now charging Trump.  

“This judge is going to be very concerned about the obvious attempt to influence potential jurors, as well as the incitement to engage in violence,” Gottlieb said. Judge Merchan “will do everything possible to control his courtroom and prevent violence.”

Trump has ramped up racist attacks on Manhattan DA Alvin Bragg, the prosecutor that announced charges against Trump on Thursday, as the case loomed into view several weeks ago. 

Trump has called Bragg, the first Black man ever elected Manhattan DA, an “animal” and a “racist,” while urging MAGA followers to “protest!” Trump warned that “potential death & destruction” could occur if he’s indicted, and called Bragg a “degenerate psychopath.” A group of about 175 former federal prosecutors slammed Trump in an open letter last week, warning that his statements “can be construed as inciting violence.” 

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Trump recently decided to attack Judge Merchan—which is a move not generally recommended for defendants facing criminal cases, to put it mildly. 

“The Judge ‘assigned’ to my Witch Hunt Case, a ‘Case’ that has NEVER BEEN CHARGED BEFORE, HATES ME,” Trump wrote on Truth Social on Friday. “His name is Juan Manuel Marchan, was hand picked by Bragg & the Prosecutors,” Trump continued, misspelling Judge Merchan’s name. 

Trump is even fundraising off his criminal case. His campaign has boasted that Trump raised $4 million within 24 hours after the indictment was announced on Thursday afternoon.

The exact nature of the charges against Trump will be unveiled on Tuesday at the arraignment, which is now scheduled for shortly after 2:00 p.m. On Sunday, Trump announced a press conference at his Mar-a-Lago club in Palm Beach, Florida, scheduled for 8:15 p.m Tuesday night.

That makes Tuesday an early test of both Trump’s ability to moderate his incendiary tone—and of Judge Merchan’s patience. 

New York City officials have signaled they’re taking security questions surrounding the hearing in lower Manhattan seriously. The New York City Police Department has sent additional uniformed officers out onto the streets in all five of the city’s boroughs, and the city plans to shut down some streets around the courthouse Tuesday

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Bragg’s office recently received a threatening letter containing white powder and the words: “”ALVIN: I AM GOING TO KILL YOU!!!!!!!!!!!!!” 

The letter was addressed to Bragg and mailed from Orlando, Florida, on Tuesday, according to NBC News

Gag orders are a relatively common feature in criminal cases, especially when a defendant’s statements could be interpreted as threatening prosecutors, influencing witnesses, or tainting the jury pool. And violating a gag order means committing the crime of contempt of a court order—which, in New York, can be punished by up to a year in jail

Judge Merchan may start with a warning, before escalating if Trump continues to use incendiary language, said Barbara McQuade, the former top prosecutor in Detroit, Michigan. 

“A gag order seems unlikely now, but I could envision a scenario of progressive discipline,” McQuade told VICE News. “I could see a judge giving Trump a warning that, going forward, he should refrain from making statements that could reasonably be seen as making threats against the prosecution or the court or calling for violence. If Trump were to violate that warning, I could then see a judge escalating the consequence to gag order, a violation of which could result in jail.”