A Manhattan jury found Donald Trump guilty on all 34 counts of falsifying business records in the hush-money case.
The urgent question is: what punishment should the former US president face?
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The decision is entirely up to Juan Merchan, the judge supervising the case. In New York, class E felonies, the least serious category punishable by up to four years in jail, found Trump guilty of fabricating company documents in the first degree. The court has scheduled his sentencing for July 11.
However, experts believe Trump is unlikely to face a prison sentence. The court found him guilty of a nonviolent paper offense, marking his first offense.
“I think the judge would probably not incarcerate him under those circumstances alone,” said Cheryl Bader, a law professor at Fordham University who considered any jail sentence “unlikely.”.
“But given that he is a former president, has a Secret Service detail, and is also the presumptive Republican nominee, I think a term of incarceration would be logistically very difficult, but also would have political implications that I think Judge Merchan would want to avoid.”
Any punishment is likely to include fines, probation, community service, or a mix of these.
“I would like to see community service—picking up trash on the subway,” said Karen Friedman Agnifilo, a former senior prosecutor in the Manhattan district attorney’s office.
Much will depend on how Merchan understands Trump’s actions, notably his lack of sorrow.
“I can’t imagine we will see a remorseful, apologetic Trump if it comes time for sentencing,” said Bader. “Judges also examine the harm done. Judge Merchan, on the one hand, could see this as a technical recording infraction intended to cover up shady behavior that caused only minor harm. “On the other hand, he could see Trump’s actions as causing significant harm to the entire country by denying the voting public the ability to cast an educated vote in the most important national election.”
The jury did not have the option to convict Trump of a misdemeanor—misrepresenting company records—but not as part of an underlying offense. Trump’s attorneys could have asked Merchan to give the jury the option, but they didn’t.
Both the prosecutors and Trump’s lawyers will make recommendations on sentencing. The probation office will create a confidential presentencing report for the judge.
Trump will probably file an appeal soon. The pending appeal would likely put any punishment on hold.
The appellate procedure could take months, if not years, to complete, so the punishment may not be effective for some time. Trump has 30 days to file a notice of appeal of the guilty decision, followed by six months to file a full appeal with the first judicial department, which oversees appeals from New York County. Trump is likely to file an appeal with the seven-member New York Court of Appeals, the state’s highest appellate court, if the conviction stands. The court has the discretion to hear the matter or not.
Sophisticated legal issues, such as whether the judge gave the jury the right instructions and permitted the inclusion or omission of the right evidence, are likely to be the points raised on appeal. On appeal, facts and witness credibility would not be questioned.
Trump is likely to file an appeal with the United States Supreme Court, which may decide whether or not to hear the case, if the New York Court of Appeals affirms the conviction. Because the case is based on New York state law, Trump would need to persuade the judges that there is a federal or constitutional issue at stake.
Trump’s legal eligibility to run for president will be unaffected by his conviction. The Constitution does not prohibit convicts from running for office. Whether he can serve as president while in prison is still up for debate. He would be unable to pardon himself for any conviction because it is a state offense.
Trump’s ability to vote in the fall election will most likely be unaffected by his conviction. His registration is in Florida, a state that permits voters with out-of-state convictions to cast ballots if their convicting state permits it. If not incarcerated, a person with a felony conviction in New York is eligible to vote.
Merchan has already reprimanded Trump twice in the case for violating a gag order, and the way the judge handled both incidents may provide insight into how he may approach any potential sentence for Trump. It demonstrates Merchan’s acute awareness of the logistical challenges of incarcerating Trump, as well as the broader political consequences.
“Mr. Trump, please understand that the last thing I want to do is throw you in jail. You are the past president of the United States and potentially the next president,” Merchan said on May 6, issuing a $1,000 punishment for Trump’s 10th contempt of court. He explained that putting Trump in jail was a final resort for him. I’m also concerned about the people who will have to carry out that sanction: court authorities, correction officers, Secret Service detail, and others. I’m concerned about them and the process of carrying out such a sentence.
“Of course, I am aware of the broader consequences of such a sentence.” Such a decision is not one-sided in importance. But, at the end of the day, I have a duty to do, and part of that job is to uphold the legal system’s dignity and compel respect,” he said.
