Why Trump is likely to have more leeway for outbursts in criminal trials

A federal judge threatened to kick Donald Trump out of a civil trial Wednesday. The judges overseeing his criminal cases this year might be less inclined to issue similar ultimatums.

The challenge facing judges in Trump’s four criminal trials is the need to balance potential outbursts against specific legal rights for criminal defendants, according to legal experts.

Criminal defendants have the constitutional right to be present at their trials — a right not as absolute in civil cases. While judges can still boot defendants during criminal proceedings if their conduct is deemed bad enough, they may be warier about wading into that territory.

“A criminal defendant has a right to be present at all proceedings, and I’ve had cases where convictions are overturned because a judge put a guy in another room where he could watch everything but couldn’t communicate with his lawyer,” said Danny Cevallos, an attorney and NBC News legal analyst. “So any time a judge removes a defendant in a criminal case, the judge has to consider some very important constitutional issues in the possibility that the case could get overturned.”

E. Jean Carroll’s civil damages trial turned heated Wednesday when the judge threatened to kick Trump out of the courtroom for making comments during witness testimony that Carroll’s lawyer said the jury could have heard.

While judges can still rule that criminal defendants have waived their rights to be in the courtroom if they have outbursts, what qualifies as misbehaving enough to be expelled is up to the judge.

“How many times a judge will warn him before he removes them from the courtroom? Again, that depends on the judge,” said Sam Rabin, a criminal defense attorney who served under Janet Reno when she was a state attorney in Florida, before she was U.S. attorney general during the Clinton administration. “It depends on his sensitivity to other issues, like a person’s right to be present in his trial. And in the case of Donald Trump, you know, the perception that he would be treated unfairly.”

Actions that could lead a judge to bar a defendant include threats, physical violence and verbal abuse, which is the most common, said Dean Johnson, a criminal defense attorney who is a legal analyst for NBC Bay Area.

Verbal abuse could mean “interrupting the lawyers who are questioning witnesses, interrupting the witnesses, making snide comments about the judge, his staff, the jury,” Johnson said. “If it’s extreme enough and if it’s repeated enough, then the judge can either — in a civil or a criminal case — can eventually exclude the defendant.”

Before judges bar criminal defendants from the courtroom, they must put them on notice and lay out the consequences for violating court orders, said Glenn Kirschner, an NBC News legal analyst.

“If you admonish a defendant or a respondent once and he does precisely the thing that the judge told him not to do, in my opinion and experience, appellate courts would affirm a judge’s decision to remove the defendant or the respondent from the courtroom,” Kirschner said.

During trials involving the Jan. 6, 2021, riot at the U.S. Capitol, some judges have had to navigate outbursts from defendants. In at least three cases witnessed by reporters from NBC News, Capitol riot defendants repeatedly interrupted or disrespected judges during hearings. In all three cases, the defendants had mental health issues or diagnoses for conditions like post-traumatic stress disorder and bipolar disorder.

Brandon Fellows, a Jan. 6 rioter who was convicted last year, was held in contempt and sentenced to five months in prison by Trump-appointed Judge Trevor McFadden after Fellows called McFadden’s court “a kangaroo court,” a remark he made outside the presence of the jury. Fellows had told jurors that he is on the autism spectrum and has attention-deficit/hyperactivity disorder.

If defendants are having genuine mental breakdowns, judges might shut them down and make sure they get help. But if someone is just behaving badly without a mental health diagnosis, judges would “tolerate it once or twice, and then hold them in contempt of court,” said Heather Shaner, who has been a court-appointed lawyer for numerous Jan. 6 defendants.

“You’re dealing with people who have egos, and they also have a courtroom to run,” Shaner said. “These are powerful people, and I don’t think they put up with a lot of s—.”

Shaner predicted that Trump would get “a lot more leeway” because it is such an unusual situation for a former president seeking another term in the White House and leading in the polls for his party’s nomination.

Trump could face criminal proceedings before several different judges this year related to cases involving allegations of election interference, falsification of business records and mishandling of classified documents. He has pleaded not guilty in each case.

One of the earliest tests of Trump’s courtroom demeanor for a criminal trial could come in March before U.S. District Judge Tanya Chutkan, who is overseeing the federal election interference case in Washington. Scheduling for that case was put on hold while an appeal is decided.

“I think Chutkan is brilliant, and I think she will be level-headed and try to get him to behave through his lawyer, and hopefully that’ll work,” Shaner said. “Because, push comes to shove, she would have to treat him like any other defendant, because that’s her responsibility.”

Defendants’ outbursts may not play well with juries, either, legal experts said.

“For most jurors, this is their first and perhaps only time in a courtroom. They expect and understand that the judge is in charge. Typically, if someone continually disobeys a judge’s rulings — if a defendant acts out, for instance — that usually doesn’t sit well with the jury,” said Chuck Rosenberg, an NBC News legal analyst and former U.S. attorney. “I don’t think Mr. Trump or any criminal defendant, for that matter, would help himself or herself with a bunch of staged outbursts.”

But Trump has frequently tried to use legal issues as political fodder, arguing that he’s the victim of witch hunts, sending fundraising pitches after legal decisions and railing against judges and prosecutors on social media and at political rallies. Last year, his best day of online fundraising came when he was arraigned in New York as part of the hush-money case.

It’s for those reasons that some experts say Trump may decide that arguing with a judge helps him politically.

“You can fundraise off ‘the deep state just kicked me out of the courtroom,'” said Kirschner, explaining why he thinks Trump wants to be expelled from trial proceedings.

Trump’s exchange with the judge Wednesday appeared to be a departure from his usual courtroom behaviors in the election interference case. During previous appearances in connection with that case, he was a bit more subdued. But those appearances didn’t include testimony from a woman who had accused him of assault.

When a panel of three federal appellate judges heard oral arguments this month on whether presidential immunity should protect Trump from being prosecuted for his attempts to overturn the 2020 presidential election, Trump mostly listened quietly, occasionally dashing off notes to his lawyer on a yellow legal pad. He was most animated when his lawyer said he was winning against President Joe Biden in the 2024 polls, which caused him to nod his head “yes” vigorously.

This article was originally published on NBCNews.com