A New York jury’s historic conviction of Donald Trump on felony charges means his fate now rests in the hands of the judge he has repeatedly portrayed as “corrupt” and “incompetent.”
Two experts told NBC News that Trump is unlikely to be jailed based on his age, lack of criminal record and other factors — and an analysis of thousands of cases found that very few people accused of the same crime receive prison time to get. But a third expert told NBC News he believes it is “substantially” likely that Trump will end up behind bars.
Trump was convicted on 34 counts of falsifying corporate records, a Class E felony punishable by a fine, probation or up to four years in prison. During the trial, Judge Juan Merchan threatened to put Trump behind bars for violating his gag order, but it is unclear whether the former president will now face similar consequences.
Former federal prosecutor Chuck Rosenberg, an NBC News analyst, said it was unlikely Merchan would sentence the 77-year-old Trump to any prison time given his age and his status as a nonviolent offender. “I would be very surprised if there was any jail time at all,” Rosenberg said. “Of course he has spent a lot of time insulting the judge who has the authority to lock him up.”
The next step for Trump at this point is his sentencing, which is set for July 11.
Arthur Aidala, a former prosecutor in the Brooklyn district attorney’s office and now an attorney, said the judge will likely use some of the time before sentencing to examine similar cases to determine what the average sentence would be. is.
“Before he convicts anyone, he wants to know what the typical sentence is,” Aidala said, adding he would consider other factors such as Trump’s age and lack of a criminal record, while also taking into account the lack of injury caused by the crime. Aidala said he believes whatever sentence the judge imposes would be “a non-jail measure.”
An analysis conducted by Norm Eisen, who worked for Democrats in the House of Representatives during Trump’s first impeachment, found that about one in 10 people convicted of falsifying corporate records ends up in prison, and that these cases usually involve other crimes.
Ron Kubyan experienced criminal defense attorney from New York, took a different position.
“Judge Merchan has a reputation for tough sentencing when it comes to white-collar crimes committed by people who have wealth, privilege and power,” Kuby said.
Kuby added that he believes “it is substantially likely that Judge Merchan will sentence Trump to prison or jail,” despite the logistical and practical complications that locking up an individual with Secret Service protection would entail.
The lawyer said this is because the criminal scheme lasted over a year and included a number of bad acts by Trump.
“It’s a whole course of conduct that he was involved in – and not just one bad decision,” Kuby said.
Trump’s conduct during the trial, including ignoring Merchan’s silence order by making comments about witnesses and the jury, is unlikely to play a role in the sentencing decision, Kuby said. It is also highly unlikely that comments that appeared intended to circumvent the gag order imposed on Republican officials who attended the trial as Trump’s guests will factor into the judge’s reasoning, Kuby added.
“If the judge is smart, he would stay away from that,” Kuby said. “The best way for judges to avoid overturning a conviction is to stick to the facts and circumstances of the crimes and the sentencing.”
Rosenberg said that despite Trump’s frequent criticism of the judge, who he compared to “a batter yelling at the umpire before the first pitch,” Merchan appeared to have “a clean and fair trial.”
Both Rosenberg and Kuby agreed that Trump would appeal the conviction. Kuby said this could potentially delay Trump from serving the sentence the judge hands out for years, even if the appeal is ultimately unsuccessful.
His first appeal will be to the State Appellate Division, a mid-level appeals court, and they almost certainly won’t decide the appeal until after the November election, Kuby said. If he loses there, he can appeal to the state’s highest court, the Court of Appeals. A loss there would be followed by a request for the U.S. Supreme Court to hear the case.
If all that fails, Kuby said, he might try to turn to federal court in a new effort to eventually get the case to the Supreme Court.
The appeals process is typically lengthy — Kuby said he had one client who deferred a six-year prison sentence — but there’s another potential complicating factor in this case.
“If he becomes president of the United States, he cannot be locked up in a state prison while in office,” Kuby said, because that could prevent him from fulfilling his constitutional duties. If he were to lose his appeal, “by the time he leaves office — if he leaves office — he would be ready to be locked up,” he said.
This story first appeared on NBCNews.com.
This article was originally published on TODAY.com
