As former President Donald Trump’s first — and perhaps only — criminal trial comes to a close, conventional wisdom holds that even if he is convicted, he is unlikely to serve any prison time. After all, the charges he faces are among New York’s mildest crimes, and if he is found guilty, he would be a first-time offender.
Don’t be so sure, say former prosecutors from the State Attorney’s Office who are now charging him.
The case, in which Trump is accused of falsifying business documents to conceal a payout to a porn star, is unlike any other. So it is difficult to predict how Judge Juan Merchan, who is presiding over the trial, would handle a possible conviction.
“This is not a one-time, ‘Oops, I made a mistake in my company information,’ or even a one-time scheme,” said Diana Florence, a former prosecutor in the Manhattan District Attorney’s Office who ran for district attorney. job in 2021, but lost to Alvin Bragg, the lead prosecutor in the Trump case.
Bragg, a Democrat, has claimed that the payout to Stormy Daniels, who claimed she had a sexual encounter with Trump, was just part of an elaborate effort to bury potentially damaging stories about Trump during his 2016 presidential campaign.
“Given the totality of the facts and circumstances revealed at trial, I believe that if convicted, a prison sentence is warranted and justified,” Florence said.
“If I were the prosecutor, I would absolutely ask for state prison,” she added.
The maximum penalty for the crime Trump is accused of — felony-level falsifying corporate records — is four years in prison. He is charged with 34 separate counts. If they were convicted of all of them and sentenced to prison, the prison sentences for each count would almost certainly run concurrently.
However, Merchan would not have to impose any prison time. He would have broad discretion to choose a lighter sentence, such as probation or a term of ‘conditional discharge’. A probation sentence would require Trump to regularly contact a probation officer and follow other rules. A conditional discharge would allow Trump to remain free without parole supervision as long as he stayed out of trouble.
Merchan could also order the former president to perform community service.
With closing arguments in the case set to begin Tuesday morning, a verdict could come as soon as this week. But if the jury finds Trump guilty, Merchan would not immediately convict Trump. 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. These include: Has the perpetrator committed crimes before? Does he show remorse? Is he a danger to the community? Would his incarceration deter others from committing the same crime?
Trump, of course, has no previous criminal convictions — even though he has been charged in three other cases and was convicted twice at trial for repeated violations of Merchan’s silence order. Given that he is known for never saying sorry – not even, as he says, to God – any expression of regret seems unlikely.
As for deterrence, Merchan might conclude that it is unlikely that future presidential candidates will be tempted to secretly funnel six-figure payments to porn stars. may conclude that deterring similar schemes is crucial for democracy. All relevant provisions may be subjective.
Former Assistant Manhattan District Attorney Stuart Meissner said he thinks prison time is more likely than not.
“I think, knowing most judges in New York, they want to show that no one is above the law, and that’s why they would probably sentence him to prison,” he said. “I don’t think about it much, but I think it would be included to show that point.”
Some criminal defense attorneys disagree.
“Judge Merchan, as far as I know of his reputation, is not known for draconian sentencing,” said Peter Tilem, an attorney and former assistant district attorney. “He’s not known for having the toughest sentencing in the building. I don’t think he would start with this particular case.”
However, nothing is certain, Tilem added.
“When you talk about this case, and Donald Trump in general, but especially this case, all the rules are out the window and so there are no guarantees,” he said.
The immense public scrutiny of any sentence Merchan imposes will put added pressure on the decision, said Norm Pattis, an attorney who has represented high-profile and controversial clients.
Pattis appeared before Merchan more than a decade ago in another tabloid-friendly case: the prosecution of Anna Gristina, the suburban mother of four who became known as the “Soccer Mom Madam” because she was accused of running a Manhattan brothel.
Merchan’s handling of that case generated worldwide media attention – including when his decision to impose a hefty bail was overturned on appeal. Gristina ultimately reached a settlement with the Manhattan district attorney’s office.
“So-called high-profile cases bring an energy to the courtroom that is typically toxic,” Pattis said. “Every move is second guessed and scrutinized. Judge Merchan is no stranger to that level of scrutiny. I don’t know if he welcomes it.”
Pattis added that he finds it inconceivable that Merchan would send a major party’s presidential candidate to prison.
“It would be terrible for the country if Merchan were to put this man in prison under these circumstances,” he said. “And I think he knows.”
