What happens if Trump is convicted in New York? No one can really say

When the magistrate presiding over Donald Trump’s criminal trial determined on May 6 that Trump had breached a gag order for the 10th instance, he informed him that “the last thing I want to do is to incarcerate you.””You are the former president of the United States and potentially the next president, as well,” said Justice Juan Merchan, contemplating the significant impact of such a judgment.Whether to imprison the Republican Party’s expected candidate for president is a decision that Merchan might soon encounter again, if jurors in Trump’s “hush money” case decide to convict him. Concluding remarks and jury considerations commence this week.

What exactly would happen if the jury declares Trump guilty is challenging to foresee. Trump is being prosecuted in New York state court, where magistrates possess extensive authority to decide when sentences are imposed after convictions and what exactly they will be, per former Manhattan prosecutor Duncan Levin. That contrasts with federal court, where there’s generally a delay between a conviction and sentencing. “It’s much more informally handled in state court. I’ve had instances where the jury returns and says, ‘guilty,’ and the judge thanks the jury, and dismisses them, and says, ‘Let’s sentence the defendant right now,” said Levin. “Obviously, everything’s a bit different about this case than the typical one.”

Each of the 34 felony falsification of business records accusations that Trump is confronting carries a penalty of up to four years in prison and a $5,000 fine. He has declared not guilty. Norm Eisen, an author and lawyer, recently examined numerous cases initiated by the Manhattan District Attorney’s Office in which falsifying business records was the most severe charge at arraignment. He discovered that approximately one in ten of those cases resulted in a sentence of imprisonment. But he also warned that those prosecutions frequently involved other charges and noted the unique factors at play in Trump’s case make his sentence particularly difficult to predict. If Trump is found guilty, Merchan would have relatively broad discretion in determining a penalty, including sentencing Trump to probation or house confinement. Levin mentioned the option of restricting Trump to his residence, followed by a term on probation, might be attractive to Merchan, who has repeatedly indicated he is concerned about limiting a presidential candidate’s ability to speak freely. Such an option would allow Trump to give interviews and use social media from his home.

From the day Trump was initially arraigned, on April 4, 2023, Merchan stated he was reluctant to impede Trump’s ability to campaign.”He is a candidate for the presidency of the United States. So, those First Amendment rights are exceedingly crucial, obviously,” Merchan said that day. And on May 6, he commented more broadly on the additional individuals who would be encumbered by imprisoning Trump. Merchan termed incarceration “truly a last resort for me,” stating, “I also worry about the people who would have to carry out that sanction: the court officers, the correction officers, the Secret Service detail, among others.”Still, that day, he warned Trump that jail is not out of the question.”I want you to understand that I will, if necessary and appropriate,” Merchan said. It’s a possibility that officials in state and federal entities have started preparing for, according to a New York corrections source, who mentioned the Secret Service has consulted with local jail officials. As a former president, Trump is entitled to Secret Service protection for the rest of his life, wherever he might be. Behind bars, corrections officers would in turn be responsible for safeguarding those agents assigned to Trump.

Where Trump might serve any jail or prison sentence is one of many aspects that remains unresolved. Shorter sentences can be served at the city’s Rikers Island Jail Complex, which has two sections that are generally used for high-profile or notorious inmates. (Neither, of course, has ever housed someone who comes with his own security detail.) Officials must have a plan in place, just in case, said Levin.”He could be remanded on the spot,” Levin stated. Katrina Kaufman contributed reporting.

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Graham Kates

Graham Kates is an investigative journalist covering criminal justice, privacy matters, and information security. Contact Graham at KatesG@gmail.com or grahamkates@protonmail.com

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