If convicted, would Trump go to prison? It’s not out of the question.

POLITICO


If convicted, would Trump go to prison? It’s not out of the question.

Sending Trump to prison would be an extraordinary punishment, but some experts think it could be in play.



The case, in which former President Donald Trump is accused of falsifying business documents to conceal a payoff to a porn star, is unlike any other. | Spencer Platt/Getty Images

By BETSY WOODRUFF SWAN

05/28/2024 09:30 AM EDT


As former President Donald Trump’s first — and, perhaps, only — criminal trial crawls to a conclusion, conventional wisdom holds that even if he’s convicted, he’s unlikely to do prison time. After all, the charges he faces are among New York’s mildest felonies, and if found guilty he would be a first-time offender.

Don’t be so sure, according to former prosecutors from the office now charging him.

The case, in which Trump is accused of falsifying business documents to conceal a payoff to a porn star, is unlike any other. So it’s hard to predict how Justice Juan Merchan, who is presiding over the trial, would handle any sentencing.

“This is not a one-off, ‘Oops, I made a mistake on my business records,’ or even, a one-off scheme,” said Diana Florence, a former prosecutor in the Manhattan District Attorney’s Office who ran for the DA’s job in 2021 but lost to Alvin Bragg, the lead prosecutor in the Trump case.

Bragg, a Democrat, has alleged that the payoff to Stormy Daniels, who claimed she had a sexual encounter with Trump, was just one part of a wide-ranging effort to bury potentially damaging stories about Trump during his 2016 presidential campaign.

“Given the entirety of the facts and circumstances that came out during the trial, I believe if convicted, a sentence of incarceration is warranted and justified,” Florence said.

“If I were the prosecutor, I would absolutely be asking for state prison,” she added.

The maximum sentence for the crime Trump is charged with — felony-level falsifying business records — is four years in prison. He is charged with 34 separate counts. If convicted of all of them and sentenced to prison, the prison terms for each count would almost certainly run concurrently.

Merchan, however, would not be required to issue any prison time. He would have wide discretion to choose a lighter punishment, such as probation or a term of “conditional discharge.” A probation sentence would require Trump to check in regularly with a probation officer and abide by other rules. Conditional discharge would allow Trump to remain free without probation supervision, as long as he stayed out of trouble.

Given that Trump is famous for never saying sorry — even, in his own telling, to God — any expression of remorse seems unlikely. | Jamie Kelter Davis for POLITICO


Merchan could also order the former president to perform community service.

With closing arguments in the case beginning Tuesday morning, a verdict could come as soon as this week. But if the jury finds Trump guilty, Merchan would not sentence Trump immediately. He would schedule a separate sentencing hearing.

At that hearing, Merchan, like all judges weighing whether to impose a prison sentence, would weigh a variety of factors beyond the guilty verdict. They include: Has the offender committed any crimes before? Does he express remorse? Is he a danger to the community? Would his incarceration discourage others from committing the same crime?





Trump, of course, has no prior criminal convictions — even though he’s under indictments in three other cases and has been held in contempt twice during the trial for repeated violations of Merchan’s gag order. Given that he is famous for never saying sorry — even, in his own telling, to God — any expression of remorse seems unlikely.

As far as deterrence goes, Merchan may conclude it’s unlikely that future presidential candidates will face the temptation to secretly route six-figure payments to porn stars — but on the other hand, if he accepts the prosecution’s framing of the case as election interference, he may decide that deterring similar arrangements is critical to democracy. Any relevant determinations may be subjective.

Former Manhattan Assistant District Attorney Stuart Meissner said he thinks prison time is more likely than not.

“I think, knowing most judges in New York, they’re going to want to show that no one is above the law, and therefore he would likely sentence him to a term of incarceration,” he said. “I don’t think much, but I think it would be included just to show that point.”