A Manhattan jury has convicted Donald Trump on all 34 counts of falsifying business records in the hush-money case.
The immediate next question is: what punishment should the former US president receive?
It’s a decision that rests entirely with Juan Merchan, the judge overseeing the case. The crimes Trump has been found guilty of, falsifying business records in the first degree, are class E felonies in New York, the least serious category, and punishable by up to four years in prison. His sentencing is set for 11 July.
But Trump is unlikely to be sentenced to prison, experts say. He is a first-time offender, and the crime he has been found guilty of is a non-violent paper crime.
“I think the judge would probably not incarcerate him under those circumstances alone,” said Cheryl Bader, a law professor at Fordham University who called any sentence of incarceration “unlikely”.
“But also 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 consist of fines, probation, community service or some combination of those.
“I would like to see community service – picking up trash on the subway,” said Karen Friedman Agnifilo, a former top prosecutor in the Manhattan district attorney’s office.
Much could depend on how Merchan interprets Trump’s conduct, including any lack of remorse.
“I can’t imagine we will see a remorseful, apologetic Trump if it comes time for sentencing,” Bader said. “Judges also consider the harm caused. On one hand, Judge Merchan could view this as a technical recording violation to cover up tawdry conduct, causing only minimal harm. On the other hand, he could view Trump’s conduct as inflicting deep harm on the entire country by depriving the voting public of their right to cast an informed vote in the highest-ranking national election.”
The jury did not have the option of convicting Trump of a misdemeanor – of falsifying business records but not in service of another underlying crime. Trump’s attorneys could have asked Merchan to give the jury that option, but they did not do so.
Both the prosecutors and Trump’s lawyers will submit recommendations for sentencing. So too will the probation office, which will put together a confidential presentencing report for the judge.
Trump will almost certainly quickly appeal. Any punishment would then probably be on hold while an appeal is pending.
The appellate process would take months, even years, to play out, meaning it could be a while before the sentence would take effect. Trump has 30 days to file a notice of appeal of the guilty verdict, and then six months to file a full appeal to the first judicial department, which hears appeals from New York county. If a conviction were upheld, Trump would then likely appeal to the New York court of appeals, the seven-member body that is the highest appellate court in New York state. That court has discretion over whether to hear the case or not.
The issues argued on appeal would likely be complex legal questions – for example, whether the judge gave appropriate instructions to the jury and allowed the right evidence to be included or excluded. Facts, and the credibility of witnesses, would not be issues on appeal.
If the conviction is upheld by the New York court of appeals, Trump would likely appeal to the US supreme court, which could also choose whether or not to take the case. Because the case is under New York state law, getting it into the US supreme court would require Trump to convince the justices that there is some federal or constitutional question at stake.
The conviction will not affect Trump’s legal ability to run for president. The constitution does not bar felons from running for office. Whether he could serve as president from prison is untested. He would not be able to pardon himself from any conviction, since it is a state crime.
The conviction will probably not affect Trump’s ability to vote in this fall’s election. Florida, where he is registered, allows people with an out-of-state conviction to vote if the state where they were convicted allows it. In New York, someone with a felony conviction can vote as long as they are not incarcerated.
Merchan has already punished Trump twice during the case for violating a gag order in place, and the way the judge handled both episodes could offer insight into how he will approach any possible punishment for Trump. It underscores that Merchan is keenly aware of the logistical difficulty of incarcerating Trump and the broader political implications of doing so.
“Mr Trump, it’s important to understand that the last thing I want to do is to put you in jail. You are the former president of the United States and possibly the next president, as well,” Merchan said on 6 May, when he issued a $1,000 fine holding Trump in contempt of court for the 10th time. He went on to explain why putting Trump in jail at that time was “truly a last resort for me … I also worry about the people who would have to execute that sanction: the court officers, the correction officers, the Secret Service detail, among others. I worry about them and about what would go into executing such a sanction.
“Of course, I’m also aware of the broader implications of such a sanction. The magnitude of such a decision is not one-sided. But, at the end of the day, I have a job to do, and part of that job is to protect the dignity of the judicial system and compel respect,” he added.
