As the April 15th start date for Donald Trump’s historic criminal trial in New York rapidly approaches, the controversial former president finds himself confronting a stark reality – he could potentially be headed to prison. The hush money case centers around allegations that Trump falsified business records to cover up reimbursements to his former fixer Michael Cohen for a $130,000 payment made to adult film star Stormy Daniels in the final weeks of the 2016 election.
Daniels, whose real name is Stephanie Clifford, claims she had a sexual encounter with Trump in 2006, not long after Melania Trump gave birth to their son Barron. The money was meant to buy her silence and prevent the story from derailing Trump’s presidential campaign. He has vehemently denied the affair.
If convicted on all 34 felony counts of falsifying business records, the theoretical maximum sentence the former president could receive is over a decade in prison. Each Class E felony charge in New York carries up to 4 years behind bars. A judge also has the option to stack those sentences consecutively rather than concurrently, potentially extending it further.
However, the overwhelming consensus from legal experts is that receiving the maximum 20 year cap is extremely unlikely to happen in reality. Most predict a much more lenient sentence ranging from probation up to around 4 years, with the possibility he could avoid any incarceration at all.
“This is not the type of case you would expect someone with no criminal record to get anywhere near the maximum,” said Mitchell Epner, a veteran New York defense attorney. In fact, Epner says his “absolute expectation would be a sentence of probation” given the non-violent financial nature of the charges.
The Murky Law on Sentencing for Falsifying Business Records
Part of the challenge in forecasting Trump’s potential sentence is the relatively ambiguous sentencing guidelines for the offense of falsifying business records in the first degree – the charges he faces.
As a Class E non-violent felony, it carries a wide range of possible penalties. A judge can impose anything from straight probation up to 4 years in prison per count. Sentences are also frequently handed down as a range rather than a flat number, with the low end being as little as 1 year and 4 months before the possibility of parole.
This malleability means the sentence will likely come down to the discretion of the judge handling the case – Justice Juan Merchan of the New York State Supreme Court. And Merchan may take Trump’s antagonistic behavior and attacks on the judicial process into account when making his decision.
In fact, the judge has already expressed exasperation at Trump’s conduct, expanding a gag order this month after the former president posted a photo of Merchan’s daughter on social media and left her open to targeted harassment over her marketing work for Democrats. Merchan accused Trump of having “a history of attacking the family members of judges and lawyers in his legal cases.”
The “If I Were The Judge, He Wouldn’t Get Off Easy” Perspective
Some legal pundits believe this patterns of Trump thumbing his nose at the court could prompt a harsher sentence from Merchan, should the former president ultimately be convicted.
“If I were representing somebody in [Trump’s] position, I would suggest to him that the judge is the one who imposes sentence and he ought to be careful,” remarked John Moscow, a former prosecutor who spent 30 years in the Manhattan DA’s office.
Moscow said he would reject the notion that Trump’s status as a former commander-in-chief should automatically preclude any jail time, noting creative arrangements like isolation at military bases could allow for proper security protocols from the Secret Service.
“You can structure things to achieve the proper result without conceding that the defendant has the upper hand,” he stated.
Norman Eisen, who served as special counsel during Trump’s first impeachment, agreed some period of incarceration seems likely based on his analysis of similar falsifying business records cases involving first-time offenders in New York. He cited examples like a construction executive who got 2 days in jail per week for a year back in 2015, and a pair of corporate executives who received 4-6 month sentences in 2013.
“I think he’s likely to face a sentence of incarceration if he’s convicted,” said Eisen, now a senior fellow at the Brookings Institution.
The “He’ll Likely Get A Slap On The Wrist” Viewpoint
On the other end of the spectrum, some long-time legal minds believe the historic nature of incarcerating a former president – combined with Trump’s privileged status and lack of a criminal record – will ultimately lead to an extremely lenient punishment even if he is convicted.
“This doesn’t involve violence, it doesn’t involve drugs, and there’s not really a ‘named victim’ per se,” noted Anna Cominsky, who directs the Criminal Defense Clinic at New York Law School. “So I think it is unlikely that he would be sent to prison given who he is as a former president with no prior record.”
Diana Florence, a former prosecutor who spent decades in the Manhattan DA’s office, also has doubts Merchan would deviate too far from the norms of similar white-collar cases. She said while minimums over a year in jail could be “reasonable,” hitting Trump with a 10+ year sentence is likely a legal bridge too far.
“Judges have to have some relation to what other defendants in similar circumstances get,” Florence explained. “If [Merchan] wanted to make a real point and give [Trump] something like that, I highly doubt the appeals court would allow it to stand. It’s just too out of line with precedent.”
The Hurdle of Trump’s Inevitable Appeals
Perhaps giving Trump’s legal team even more confidence that he’ll avoid extended incarceration is the certainty that any sentence would be appealed through a process sure to stretch on for years. That effectively places the final decision in the hands of appellate judges rather than Merchan.
And in the interim, President Trump would almost assuredly be allowed to remain free on bail while his appeals played out – no matter what his original sentence was.
“The chances of him going to prison immediately, even if convicted, are less than 1% because he would be released on bail pending appeal,” Florence flatly stated.
That timeline means the hush money case is extremely unlikely to impact Trump’s ability to run for the 2024 Republican presidential nomination, which he is currently the front-runner to receive. The appeal process could realistically extend past the next election before any jail time was imposed.
Of course, the appeals issue cuts both ways. If Trump did receive a lenient sentence like probation, the prosecution could theoretically appeal that as too light of a punishment based on the evidence.
Either way, it appears inevitable that a conviction at the initial trial would merely be the opening salvo in an extended legal war between Trump’s team and the Manhattan District Attorney’s office now led by Alvin Bragg. Both sides would have ample future opportunities to fight over the ultimate sentencing.
The Historic, Potentially Seismic Stakes
While the myriad factors at play make the specific sentencing forecasts tricky, one element is crystal clear – Justice Merchan’s decision would be of historic and seismic consequences no matter what he decides.
A harsh sentence of even just a few years would undoubtedly upend Trump’s remaining political ambitions and aspirations. Even probation would carry with it the unprecedented cloud of a former president being branded a convicted felon.
And of course, should Trump defy the odds and receive no meaningful punishment at all, it would prompt serious national soul-searching about the fragility of the American justice system and the proverb that no person is above the law.
No matter how you slice it, Judge Merchan is facing a decision graver than any of his prosecutorial predecessors could have ever imagined. And the entire world will be watching with bated breath for the final ruling that will have profound impacts for American democracy.
