When the judge supervises Donald Trump's criminal trial discovered on May 6 that Trump had done so violating a gag order for the tenth time he told him that “the last thing I want to do is put you in jail.”
“You are the former President of the United States and possibly the next president“Also,” Judge Juan Merchan said, reflecting on the weight of such a decision.
Whether it's prison The presumptive nominee of the Republican Party The presidency is a choice Merchan could soon face again, if jurors in Trump's 'hush money' case vote for it condemn him. Closing arguments and jury deliberations start this week.
It is difficult to predict exactly what would happen if the jury found Trump guilty. Trump will be tried in New York state court, where judges have broad authority to determine when sentences will be handed down after convictions and what exactly they will be, according to former Manhattan prosecutor Duncan Levin. That differs from federal court, where there is typically a waiting period between a conviction and sentencing.
“It's done much more informally in state court. I've had cases where the jury came back and said 'guilty,' and the judge thanked the jury, excused them and said, 'Let's convict the defendant right now.'” said Levin. “Obviously everything about this case is a little bit different than the typical case.”
Each of the 34 charges of falsifying corporate records that Trump faces carries a penalty of up to four years in prison and a $5,000 fine. He has pleaded not guilty.
Norm Eisen, an author and attorney, recently analyzed dozens of cases brought by the Manhattan District Attorney's Office, in which falsifying corporate records was the most serious charge at arraignment. He found that about one in ten of these cases resulted in a prison sentence. But he also warned that these prosecutions often involved other charges and noted that the dynamics at play in Trump's case make his sentence particularly difficult to predict.
If Trump is found guilty, Merchan would have fairly wide leeway in determining a sentence, including sentencing Trump to probation or house arrest.
Levin said the option of confining Trump to his home, followed by probation, could be attractive to Merchan, who has repeatedly expressed concerns about limiting a presidential candidate's ability to speak freely. Such an option would allow Trump to conduct interviews and access social media from his home.
From the day Trump was first indicted, on April 4, 2023, Merchan has said he was reluctant to interfere with Trump's ability to campaign.
“He's a candidate for president of the United States. So those First Amendment rights are obviously critical,” Merchan said that day.
And on May 6, he spoke more broadly about the additional people who would be burdened by imprisoning Trump.
Calling incarceration “really a last resort for me,” Merchan said, “I'm also concerned about the people who would have to carry out that sanction: the justice officials, the corrections officers and the secret service details, among others.”
Still, he warned Trump that day that prison time was not out of the question.
“I want you to understand that I will do that, if necessary and appropriate,” Merchan said.
It's possible officials from state and federal agencies have begun preparing for the corrections, according to a New York source who said the Secret Service has met with local prison officials. As a former president, Trump is entitled to protection by the Secret Service for the rest of his life, wherever he is. Behind bars, corrections officers would in turn be responsible for protecting officers assigned to Trump.
Where Trump might serve a prison sentence is one of several factors still up in the air. Shorter sentences can be served at the city's Rikers Island Jail Complex, which has two wings typically used for high-profile or infamous inmates. (Neither, of course, has ever detained anyone who came forward with their own security details.)
Officials should have a plan ready just in case, Levin said.
“He can be taken into custody on the spot,” Levin said.
Katrina Kaufman contributed reporting.
