NEW YORK – Manhattan District Attorney Alvin Bragg entered former President Donald Trump’s hush-money trial besieged by death threats from extremists, censure from political commentators for creating a national distraction (“Save the mugshots for Georgia, the handcuffs for Jan 6,” Peggy Noonan wrote in The Wall Street Journal) and criticism from legal analysts who saw the case as structurally flawed and too quixotic to move forward. The result, nevertheless, was a guilty verdict on all 34 counts of falsifying corporate records in the name of covering up a sinister plan to disrupt the 2016 election.
The district attorney’s work will soon focus on the sentencing memo his office will submit to the judge in the case, Juan M. Merchan, which should prove just as controversial regardless of what it recommends. Trump was convicted of Class E crimes, the lowest level in the state, and could be sentenced to probation or up to four years in prison — or, alternatively, what’s known as a split sentence, with a relatively short time spent in a city jail prior to probation determination. (It’s unlikely that a former president’s idea and his requisite Secret Service details are all piling up on Rikers Island.)
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Certainly worth considering is the fact that Michael Cohen, one of the executors of the conspiracy for which Trump served as impresario, was sentenced to three years in prison – although he ultimately did not serve the full term – after pleading guilty to campaign finance charges. violations and lying to Congress. Last year, Allen Weisselberg, the former chief financial officer of the Trump Organization, spent 100 days in jail after pleading guilty to tax fraud involving his former employer – another “paperwork” violation. And he was resentenced to prison in April, in accordance with Bragg’s recommendations, after pleading guilty to perjury in Trump’s civil fraud trial.
The political fallout surrounding this issue is multi-layered, both in terms of the presidential election and Bragg’s own career. Unlike a federal prosecutor in a similar position, Bragg is an elected official. (Granted, history offers no analogous example of an attorney general interfering in the fate of an ex-president with a criminal conviction.) Should he bend to clemency, he will have to deal with the potential Trump backlash -hating Manhattan Democrats who want to keep him. in the office. Should he submit to a harsh sentence, he faces accusations of hypocrisy from legal purists and an extensive Trump support system that, as one former prosecutor put it, would immediately generate millions of dollars from the designation of a maximum sentence.
Bragg is a well-known reformer who built his reputation by turning away from the prosecution of low-level street crimes and championing an anti-carceral approach to criminal justice. What would it mean to him to send a 77-year-old man with no criminal record to prison?
“It’s a sad day to put someone in jail. ‘Lock him up’ – we don’t believe in that,” Duncan Levin, a former Manhattan prosecutor turned lawyer, told me. “A conviction of a former president is sad,” he added, and the task of convicting him is one that “you wouldn’t wish on anyone.”
Still, Levin claimed he had difficulty “imagining an E-crime case that would require more prison time than this one.” He pointed to Trump’s three pending charges, his lack of demonstrated remorse — which is heavily considered in sentencing decisions — and the several times he was held in contempt during the trial.
“You can criticize the district attorney for asking for prison time because it is politically motivated,” Levin said, “but that doesn’t mean Trump doesn’t deserve it.”
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