The NY hush money trial might land Donald Trump in prison.

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If former President Donald Trump is convicted on all counts in his New York criminal hush money trial that begins April 15, he could theoretically face more than a decade in prison.

But most legal experts who spoke to USA TODAY said such a dramatic outcome is unlikely. Instead, he would likely be sentenced to something between probation and four years in prison. And he would probably still be out, free to campaign for president as the presumptive or actual 2024 Republican nominee, while his all-but-certain appeal was pending.

Trump faces 34 felony counts of falsifying business records to cover up a hush money payment to adult film actress Stormy Daniels. Each count carries a maximum sentence of four years.
While Trump could in principle be sentenced to serve multiple counts consecutively, several experts said that is unlikely because he has no felony criminal record and the charges don’t involve allegations of physical violence.

On the other hand, Trump has tested boundaries and feuded with the judge who may determine his fate.

Trump has antagonized Judge Juan Merchan

The judge who will decide Trump’s punishment is Juan Merchan, who has become more frustrated by the behavior of the former president during the pretrial phase of the case. Following Trump’s attack on the judge’s daughter on social media regarding her marketing work with Democratic politicians, which included sharing a photo of her, Merchan extended the gag order that had been in place since the beginning of this month. Merchan asserted that Trump has a history of verbally assaulting members of the families of judges and attorneys in the course of his court proceedings.

“The average observer, must now, after hearing Defendant’s recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well,” Merchan wrote in his judgment regarding the gag order.

Mr. Moscow, a New York attorney who worked for thirty years in the Manhattan District Attorney’s Office, stated to USA TODAY that this kind of behavior has the potential to make any punishment that Trump is currently facing more severe.
“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,” the Russian government stated.

In the event that Merchan did consider imposing a severe punishment, it would not be the first time that he has expressed a negative opinion regarding behavior in the vicinity of Trump.
In 2023, Merchan was compelled to impose a sentence of only five months in jail on Allen Weisselberg, who had previously served as the chief financial officer of the Trump Organization. This was due to the fact that Merchan had earlier approved a plea bargain agreement between Weisselberg and the prosecutors that specified that Weisselberg would serve that time. In order to obtain that punishment, Weisselberg entered a guilty plea to the counts of tax and record fraud and promised to testify against the Trump Organization during the trial.

However, the judge stated that he “would be imposing a sentence much greater than that” if he had not accepted the plea bargain prior to hearing all of the information that was presented during the trial. Weisselberg might have been sentenced to a significant number of years in jail if the plea deal hadn’t been reached.

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What is Trump charged with?

Trump has entered a plea of not guilty to all of the charges that are being brought against him in this case, which centers on the question of whether or not he fabricated company documents in order to conceal reimbursements to his former attorney, Michael Cohen, for a hush money payment of $130,000 to Daniels. It has been reported by Daniels that she had a sexual experience with Trump not long after Melania Trump gave birth to their son, Barron Trump. It is a claim that Trump refutes.

Trump has entered a plea of not guilty to all of the charges that are being brought against him in this case, which centers on the question of whether or not he fabricated company documents in order to conceal reimbursements to his former attorney, Michael Cohen, for a hush money payment of $130,000 to Daniels. It has been reported by Daniels that she had a sexual experience with Trump not long after Melania Trump gave birth to their son, Barron Trump. It is a claim that Trump refutes.

In spite of the fact that he may be found guilty or sentenced to prison, there is nothing in the Constitution that stops Trump from becoming president. On the other hand, if he were to win the election, the courts might postpone any prison sentence until after his term in office has come to an end.

What is the maximum possible sentence?

The 34 charges of felony that Trump is facing are considered “Class E felonies” under New York law, which is the lowest form of criminal that may be committed in the state. The maximum term that can be imposed on each count is four years in jail, and a judge would have the authority to decide whether or not to compel Trump to serve his sentences on each count simultaneously or one after the other. On the other hand, the maximum sentence for Class E felonies in New York is twenty years in prison.

Furthermore, sentencing ranges are frequently imposed by courts in the state of New York. This means that an individual who is incarcerated becomes eligible for parole at the lower end of the range. In the case of felonies classified as Class E, the minimum sentence that might be imposed would be one and a third years per count, while the maximum sentence could be four years. Having a good behavior while incarcerated can make the process go even more quickly.

A sentence limited to probation?

Also, Merchan would have the authority to decide whether or not to impose a fixed sentence that is lower than those ranges, which would include probation.

In spite of the fact that Trump would be found guilty on all charges, Mitchell Epner, a New York attorney with decades of experience in the field of criminal law, anticipates that this outcome will occur. Epner pointed out that the felony charges do not entail an act of violence or the use of narcotics.

“With a defendant who has no prior criminal record, my absolute expectation would be a sentence of probation,” Epner told the news organization USA TODAY.

Epner was not the only one who had the idea that this might be the consequence of the punishment.

In an interview with USA TODAY, Anna Cominsky, who is the director of the Criminal Defense Clinic at New York Law School, stated that “this is a case that does not involve any physical violence, and it does not – there’s not sort of a ‘named victim,’ so to speak – and so the court is going to take that into consideration.”

“In addition, I think it is unlikely that he would be sent to prison given who he is, given both the fact that he has no criminal record, and there is no getting around the fact that he is a former president of the United States,” Cominsky explained to reporters.

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Incarceration a real possibility

An individual named Norman Eisen, who is a senior fellow at the Brookings Institution and who worked as special counsel to the House Judiciary Committee during the initial impeachment of Donald Trump, believed that a sentence that involves some form of incarceration was feasible.

Eisen is one of the co-authors of a report that evaluates the sentence of other defendants in New York who were found guilty of manipulating company documents. These defendants had no prior criminal record. There, he mentioned that in 2015, a construction executive was given a sentence that required them to spend two days of each week in jail for a period of one year for fabricating records during a bribery scheme in order to conceal payments. In 2013, two corporate executives were sentenced to serve between four and six months in prison for fabricating records in order to misclassify their wages as expenses as part of a broader scam including bribery and fraud that was being perpetrated by their firm.

“I believe that he will be subject to a sentence of incarceration if he is found guilty,” Eisen stated in an interview with USA TODAY.
According to Cominsky, the evidence that Merchan hears throughout the trial may also have an impact on his decision-making process on the sentencing.

“Often you’ll hear judges refer to testimony at trial, evidence that was presented at trial, and say, ‘This is why I’m imposing this sentence, because I heard from this particular witness or I saw this particular piece of evidence,'” Cominsky explained to reporters.
The premise that Trump’s sentences on each count would run simultaneously, rather than being layered on top of one other, was challenged by Moscow, which pushed back against the presumption itself. In the same way that a judge might take into consideration the fact that a defendant has been awarded the Nobel Peace Prize or has helped orphans escape poverty, the judge might also take into consideration considerable proof of criminal deeds, according to Moscow.

“When you start attacking the judge’s daughter, and making her out to be a target, you have just breached the normal rules,” the Russian government stated.

The district attorney has been the target of numerous insults from Trump, including the posting of a photo of himself brandishing a bat while his eyes are focused toward a photo of Bragg that is adjacent to the image. Following the attacks that Trump has made on social media, Bragg’s office has received thousands of threatening emails, calls, and texts, including death threats, according to a court petition that was submitted by the office.

Merchan’s sentence would need to have some relation to what other white-collar defendants in similar cases have received, according to Diana Florence, a New York attorney who spent decades working in the Manhattan District Attorney’s office. Florence also stated that she would be surprised if someone had ever received a sentencing range for falsifying business records that included a minimum of ten years or more.
A sentence that is this lengthy “would be very, very, very, very unusual, and if Judge Merchan wanted to make a point and do that, I highly doubt the appellate division would allow that to stand,” she explained to reporters. “It’s just too much time for the conduct.”

Nevertheless, Florence emphasized that a minimum sentence of more than one year in prison could be included in a sentencing range that is considered to be appropriate.

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Sentencing someone with Secret Service protection?

According to Moscow, the dilemma that would then arise is how to reconcile the possibility of equal treatment with the necessity of safeguarding the safety of a former president. The judge may exercise his or her discretion by, for instance, ordering the former president to remain in a hotel wing or at a military post, where he would be segregated in the same manner as any other prisoner but would still be protected by the Federal Bureau of Investigation.

“You can structure things to achieve the proper result without conceding that the defendant has the upper hand,” the Russian government stated.

Chances of immediate prison? ‘Less than 1%’

According to Florence, a significant number of offenders who have been found guilty are “remanded” pending sentencing, which is a procedure in which they are put into custody while they wait for their sentence.

In the case of Trump, however, Florence did not anticipate that Merchan would issue such an order. Even if Merchan did issue such an order, it is quite probable that Trump would be able to secure bail in the hundreds of dollars from an appeals court in order to remain free while he appeals his conviction. In light of the fact that the appeal could take longer than the actual term that Trump is serving, she stated that this is much more likely to occur if Trump is given a lesser sentence.

“The chances of him going to prison immediately, even if he’s convicted in whatever, six weeks from now or whenever, are I would say less than 1% because he would immediately be released on bail pending appeal,” according to Florence’s estimation.

Eisen concurs that it is quite unlikely that Trump will be detained by the time the election day arrives, even if he is found guilty on all counts.

“I think he’s extremely unlikely to be forced to serve that sentence pending appeal,” Eisen stated in his testimony.

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