Possibilities if Trump found guilty in NY trial
Legal experts say long prison term unlikely
If former President Donald Trump is convicted on all counts in his New York criminal hush money trial that begins Monday, he could theoretically face more than a decade in prison. But most legal experts who spoke to USA TODAY said such an outcome is unlikely. Instead, he would likely be sentenced to something between probation and four years. And he would probably be free to campaign for president, while his all-but-certain appeal was pending. Nothing in the Constitution prevents Trump from becoming president even if he is convicted or sentenced to prison. If he won the election, however, courts may delay any prison time until after his term in office. Trump has pleaded not guilty to all 34 counts in the case, which focuses on whether he falsified business records to cover up reimbursements to his former lawyer, Michael Cohen, for a $130,000 hush money payment to adult film star Stormy Daniels. Daniels has said she had sex with Trump, who denies the claim. In order to secure felony convictions, Manhattan District Attorney Alvin Bragg’s office must convince a 12-person jury that Trump falsified the records in order to commit or conceal another crime – in this case, a federal campaign finance law violation. Bragg argues the payment was designed to keep Daniels’ story from hurting Trump’s election prospects. If Trump were convicted, here’s how the penalties could come down.
The sentencing parameters
The 34 counts Trump faces are classified as “Class E felonies” under New York law – the lowest level in the state. The maximum penalty on each count is four years of prison, and a judge would have discretion over whether to order Trump to serve sentences on each count at the same time or one after the other. However, New York caps such sentencing for Class E felonies at 20 years. In addition, New York judges often impose sentencing ranges, where an incarcerated person becomes eligible for parole at the low end of the sentence. For Class E felonies, the lowest end would be 11⁄ years per count. Good behavior can speed things up even more. While Trump could in principle be sentenced to serve multiple counts consecutively, several experts said that is unlikely because he has no felony criminal record and the charges don’t involve allegations of physical violence.
Probation a real possibility
Judge Juan Merchan would also have discretion to order a fixed sentence of less than those ranges, including probation. That’s what Mitchell Epner, a New York lawyer with decades of criminal law experience, expects would happen even if Trump were convicted on all counts. “With a defendant who has no prior criminal record, my absolute expectation would be a sentence of probation,” he told USA TODAY. Epner wasn’t alone in thinking that could be the sentencing outcome. “This is a case that does not involve any physical violence ... and so the court is going to take that into consideration,” said Anna Cominsky, who directs the Criminal Defense Clinic at New York Law School. “In addition, I think it is unlikely that he would be sent to prison given who he is, given both the fact that he has no criminal record, and there is no getting around the fact that he is a former president of the United States.”
Incarceration also a possibility
However, Norman Eisen, a Brookings Institution senior fellow who served as special counsel to the House Judiciary Committee during Trump’s first impeachment, thought some incarceration is likely if Trump were convicted. Eisen co-authored a report examining other defendants with no criminal history who were convicted of falsifying business records in New York. One was sentenced in 2015 to spend two days each week in jail for a year. In 2013, two corporate executives were ordered to spend four to six months in jail. “I think he’s likely to face a sentence of incarceration if he’s convicted,” Eisen told USA TODAY. Cominsky said the evidence Merchan hears at trial could influence his thinking. “Often you’ll hear judges refer to testimony at trial, evidence that was presented at trial, and say, ‘This is why I’m imposing this sentence, because I heard from this particular witness or I saw this particular piece of evidence,’ ” she said. John Moscow, a New York lawyer who spent 30 years in the Manhattan District Attorney’s Office, pushed back against the assumption that Trump’s sentences on each count would run simultaneously, instead of being stacked on top of each other. Just as a judge may take into account a defendant’s good deeds, the judge may look at significant evidence of bad acts, Moscow said. A key factor here: Trump has antagonized the judge, especially by attacking his daughter on social media over her marketing work with Democratic candidates, including posting a photo of her. After that, Merchan expanded a gag order, noting that Trump has a history of attacking the family members of judges and lawyers in his legal cases. “The average observer, must now, after hearing defendant’s recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well,” Merchan wrote in his gag order decision. Trump has also posted a photo of himself wielding a bat at Bragg’s head, among other attacks on the district attorney. Bragg’s office has received thousands of harassing emails, calls, and texts – including death threats – after Trump’s social media attacks, a court filing said. That type of behavior could worsen any sentence Trump faces, Moscow said. “If I were representing somebody in (Trump’s) position, I would suggest to him that the judge is the one who imposes (the) sentence and he ought to be careful,” he said. “When you start attacking the judge’s daughter, and making her out to be a target, you have just breached the normal rules.” Diana Florence, another New York lawyer who spent decades in the Manhattan District Attorney’s office, said Merchan’s sentence would need to have some relation to what other white-collar defendants in similar cases have received, and she would be surprised if someone had ever gotten a sentencing range of 10 years or more for falsifying business records. Such a long sentence “would be very, very, very, very unusual, and if Judge Merchan wanted to make a point and do that, I highly doubt the appellate division would allow that to stand,” she said. “It’s just too much time for the conduct.” However, Florence added that a reasonable sentencing range could include a minimum period of more than a year incarcerated. Contemplating any jail or prison sentence would take Merchan into uncharted territory: Trump is the first former president ever criminally charged, and the Secret Service provides him with around-the-clock security. But avoiding a sentence of incarceration on that basis risks undermining the idea of equal treatment under the law, Moscow said. “If I were the judge − and I don’t know what a judge would do in this case − I would reject out of hand the concept that because he was once president, and because as a matter of policy the Secret Service guards former presidents, that therefore he can’t go to jail,” Moscow said. The question would then become how to reconcile equal treatment with ensuring a former president’s security, Moscow said. The judge could get creative, for example by ordering the former president to stay in a hotel wing or at a military base, where he would be isolated just like any other prisoner but still have Secret Service protection. “You can structure things to achieve the proper result without conceding that the defendant has the upper hand,” Moscow said.