If a Manhattan jury convicts Donald Trump on any of the 34 counts of falsifying business records in the hush-money case, the immediate next question will be what punishment the former president should receive.
It’s a decision that rests entirely with Juan Merchan, the judge overseeing the case. The crime Trump is charged with, falsifying business records in the first degree, is a class E felony in New York, the least serious category, and punishable by up to four years in prison.
But Trump is unlikely to be sentenced to prison if he’s convicted, experts say. He is a first-time offender, and the crime he is charged with 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.”
It’s also unclear if Merchan will give the jury the option of convicting Trump of a misdemeanor, not a felony. If found guilty of a misdemeanor, he could face up to a year in a local jail, as well a probation and fines. He also wouldn’t face the other collateral consequences of being a convicted felon, including losing the right to vote while serving his sentence and the ability to serve on a jury.
Regardless of what Trump is convicted of, it will not affect his 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.
A conviction also would likely 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.
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If Trump is convicted, he will almost certainly quickly appeal. Any punishment would then likely be on hold while an appeal is pending.
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.