"Don't rule it out": Experts say "anyone else" convicted of Trump's crimes would get prison time

There's a "good likelihood" Judge Juan Merchan imposes "sentence of incarceration," NYU law professor says

By Charles R. Davis

Deputy News Editor

Published May 31, 2024 11:03AM (EDT)

Former U.S. President Donald Trump speaks to the media as he arrives to court for his hush money trial at Manhattan Criminal Court on May 30, 2024 in New York City. (Justin Lane - Pool/Getty Images)
Former U.S. President Donald Trump speaks to the media as he arrives to court for his hush money trial at Manhattan Criminal Court on May 30, 2024 in New York City. (Justin Lane - Pool/Getty Images)

In his closing arguments, former President Donald Trump's lead attorney warned the jury that a conviction could mean time behind bars.

“You cannot send someone to prison and you cannot convict somebody based upon the words of Michael Cohen,” Todd Blanche declared. That quickly earned him a rebuke from Judge Juan Merchan, the one man who – now that the jury ignored Blanche’s pleading – has the ultimate power to decide whether Trump gets hit with a fine, put on probation or is sentenced to time behind bars.

Sentencing won’t happen until July 11. And because Trump, like any convicted felon, has the right to appeal, it’s unlikely he would serve any carceral sentence, if one is even handed down, until 2025. But considering the facts, many legal experts say that a man just found guilty of 34 class E felonies in the state of New York, with a similar inability to even fake remorse, would likely be looking at time behind bars.

Trump, after all, was found guilty not just of falsifying business records, but doing so in the service of an underlying crime: as part of a conspiracy, the prosecution said, to evade campaign finance laws ahead of the 2016 election, preventing voters who had just heard him boast of sexual assault on the “Access Hollywood” tape from learning that he had also allegedly cheated on his wife in a problematic sexual encounter with an adult film star.

For a first-time convicted offender like Trump, there is no minimum sentence under New York law. “This means the judge will have discretion in imposing a sentence, taking into account the seriousness of the conduct on which Trump is convicted, the evidence at trial, Trump’s testimony, and other factors,” according to an explainer from Just Security, a legal affairs website affiliated with the New York University School of Law, published before the trial began.

Trump's behavior during the trial did not make things better for the defendant. Ten times he was found in contempt of court for violating a gag order and attacking jurors, witnesses and the judge’s family. In the closing days, the defense called a witness, attorney Robert Costello, whose testimony only aided the prosecution, which introduced an email from him discussing his efforts to pressure Cohen against cooperating with law enforcement, complaining that the ex-Trump fixer was “playing with the most powerful man on the planet.” And following the verdict, the defendant himself, instead of acting contrite or respectfully pledging to continue his legal battle, denounced it all as “a rigged trial by a conflicted judge who is corrupt.”

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“For anyone else, this would mean jail,” Andrew Weissmann, a former federal prosecutor who worked with special counsel Robert Mueller, said on MSNBC. Trump is not only lacking in remorse, he said, but “flaunting” its absence.

Trump and his allies are right when they complain of two-tiered justice in America, but it is people like the Republican nominee – a billionaire and former president – who typically evade consequences for actions that would land others who lack such money and power in a prison cell. And it is Trump’s status that remains his strongest defense today, even with a judge he has repeatedly insulted.

Karen Friedman Agnifilo, a former prosecutor with the New York District Attorney’s Office, said that if “you were to remove the name Donald Trump,” it would be an easy call. Trump has “three open other felony indictments in three other jurisdictions, in both state and federal court,” she told CNN, and has shown disdain for the entire justice process. “We’ll see what happens, but anyone else in that position would get prison.”

In 2015, for example, a construction company executive who falsified business records to cover up a bribe had to spend every weekend in jail for a year – a sentence, noted by Just Security in its guide to potential punishments for Trump, that points to how creative Merchan could choose to get if he believes a former president deserves to be behind bars.

“I do anticipate that the district attorney will ask for some sentence of incarceration,” Ryan Goodman, a professor at NYU School of Law, said on CNN. “And I do think that there is a good likelihood that the judge will impose some sentence of incarceration,” he said, adding that he does not believe such a sentence would come into effect until after Trump has exhausted his appeals.

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Norm Eisen, a senior fellow at the Brookings Institution, said that if anyone deserves prison for falsifying business records it is this particular defendant.

“This is the most serious falsifying business records case in the history of the state of New York,” Eisen said on CNN. “I think Alvin Bragg is going to ask for a sentence of incarceration and I think Judge Merchan will very seriously with that.”

Look, said Eisen: “Donald Trump engaged in a conspiracy to interfere with the 2016 election and covered it up. That’s how you get a felony: the underlying conspiracy. That is as serious a crime, tampering with American democracy, that you can have. And the judge knows that. So I think [there’s] a serious risk of a jail sentence.”

“I thoroughly agree,” conservative attorney George Conway posted on Threads. “Guilty of thirty-four felonies. No acceptance of responsibility. Total contempt for the law and the legal process. Literally held in contempt ten times. Attacks on witnesses and jurors. There’s no substantial justification for not sending him to prison.”

If prison seems like an anti-Trump fantasy, consider that so did a conviction on nearly three dozen felonies in a case that at one point looked like it would never even be brought.

Anthony Michael Kreis, a constitutional law professor at Georgia State University College of Law, previously doubted that incarceration could be in the cards. But Trump’s blatant disrespect for the rule of law will be hard to ignore come his July 11 sentencing hearing.

“Trump is going to rant and rant and rant about the process being corrupt and declaring his innocence,” he posted on social media. “Judges aren’t going to take kindly to that no matter who they are.”

Trump loyalists like Ari Fleischer, White House press secretary under former President George W. Bush, are already preparing their followers for what once seemed impossible.

“Brace yourself,” said the man best known for telling America that Iraq had weapons of mass destruction. “It won’t surprise me if Judge Merchan sentences to prison,” he posted on X, bemoaning the fact that Democratic “activists” believe “Trump is a threat to democracy” and “prison is where he belongs.”

“Don’t rule it out,” he warned.

By Charles R. Davis

Charles R. Davis is Salon's deputy news editor. His work has aired on public radio and been published by outlets such as The Guardian, The Daily Beast, The New Republic and Columbia Journalism Review.

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Ari Fleischer Donald Trump George Conway Norm Eisen Ryan Goodman