For Donald Trump, justice demands: Lock him up 

If we are to have equal justice in America, we must start with the premise that no one is too big to jail. And if our justice system is to be credible, then no one should get away with bullying the courts. 

For those reasons alone, the judges in Donald Trump’s trials must follow through with their warnings of pre-trial incarceration. Clearly, $10,000 fines won’t dissuade the former president from his mafia-style tactics of terrorizing and impeaching the integrity of judges, their staff, prosecutors and jurors. 

Trump will protest that incarceration is a plot to keep him off the campaign trail. But it’s likely he relishes the idea of being jailed. It’s good for the presidential hopeful to come across as martyred by the deep state. “I don’t mind being Nelson Mandela,” he told supporters last week. If judges jail him for violating gag orders, he enhances his image as a tough guy who stands up, in his words, to “these fascists, these lunatics” who are “destroying our country.” 

Perhaps the two judges who have issued gag orders don't want to be manipulated for a campaign stunt. Or they may feel they are treading on tricky ground by challenging Trump’s First Amendment rights. But the Constitution does not protect incitement, defamation, fighting words or threats. Donald Trump uses all of them. 

Maybe they worry that jailing Trump would spark riots. But the greater danger is that Trump will prove the rich, the powerful and even common thugs can bully the justice system.   

Trump has often predicted — and in effect directed — that there would be violence in the streets if he did not get his way. In 2016, he warned his supporters would riot if he failed to win the Republican presidential nomination. At a rally in January 2022, he said he hoped for "the biggest protests we have ever had” if prosecutors indicted him. In August 2022, his wingman, Sen. Lindsey Graham (R-S.C.), warned of “riots in the streets” if the Justice Department prosecuted Trump for mishandling classified documents.   

Last March, Trump directed supporters to “PROTEST, PROTEST, PROTEST!” and “take our nation back” if authorities arrested him. He warned, “Our country is being destroyed, as they tell us to be peaceful.”  

Before they turned tail because of Trump’s intimidation, Sen. Mitch McConnell (R-Ky.) called him “morally responsible for provoking” the violence on Jan. 6; Sen. Marco Rubio (R-Fla.) noted that violence is “what happens when a leading presidential candidate goes around feeding into a narrative of anger and bitterness and frustration” and Sen. Ted Cruz (R-Texas) observed that Trump had a “consistent pattern of inciting violence.” 

The insurrection was the epitome. Trump watched passively on television as the rioters he invited to Washington for a “wild” time stormed the Capitol and threatened the lives of the vice president and members of Congress. He declined to call them off. 

He could call them off now. He could instruct MAGA militants to stand down while justice takes its course. But if he persists in threats by innuendo — and if Judges Arthur Engoron and Tanya Chutkan don't enforce their gag orders with pre-trial incarceration — it will be clear to all that bullies can intimidate and manipulate America's justice system. 

If incarcerating Trump triggers riots, so be it. The United States has weathered many in the past, up to and including Jan. 6. Rioters must know that law enforcement will pursue and prosecute them as aggressively as the Justice Department has prosecuted insurrectionists. That prospect seems to have dissuaded Trump’s militants from responding to his most recent calls for uprisings.   

As for Trump, he may not believe the courts will hold him accountable for his extralegal behaviors because they rarely, if ever, have before. He is taunting the justice system and daring it to treat him like any other criminal. But it must.  

Trump has left no doubt that locking him up is the only way to keep him from terrorizing judges and juries. This is a test of whether there is equal justice in America. The powerful and powerless are watching. So is history.  

William S. Becker is co-editor of and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” and contributor to the just-published book, Democracy in a Hotter Time. He has served in several state and federal government roles, including executive assistant to the attorney general of Wisconsin. He is currently executive director of the Presidential Climate Action Project (PCAP), a nonpartisan climate policy think tank unaffiliated with the White House.