By Luc Cohen
NEW YORK (Reuters) – If the jury deliberating in Donald Trump’s criminal trial makes the historic decision to convict him, the judge overseeing the case will face a monumental choice: whether to sentence the 2024 Republican presidential candidate to time behind bars.
Prison time is rare for people convicted in New York state of felony falsification of business records, the charge Trump, a businessman-turned-politician, faced at his six-week trial.
But legal experts said precedent can only be so helpful in guiding Justice Juan Merchan’s decision on the appropriate sentence in the first criminal trial of a U.S. president past or present.
“Typically this is not the kind of case where you would expect a first-time white-collar offender to receive a sentence of incarceration,” said New York defense lawyer Andrew Weinstein, who in 2009 represented a man sentenced to three years’ conditional discharge after pleading guilty to falsifying business records as part of a check-cashing scheme.
“But everything about Trump is different, so I don’t think you can look historically at other sentences because he’s just a different animal,” Weinstein said.
Prosecutors accused Trump, 77, of falsifying his New York-based real estate company’s books to cover up his former lawyer Michael Cohen’s $130,000 payment to porn star Stormy Daniels to buy her silence before the 2016 election about a sexual encounter she alleges she had with Trump a decade earlier.
Prosecutors say the hush money payment was part of a broader scheme in violation of campaign finance and tax laws to pay off people with potentially negative information about Trump.
Trump has pleaded not guilty to the 34 felony counts. He denies having sex with Daniels and will almost certainly appeal any conviction.
The 12-member jury was set to deliberate for a second day on Thursday after a six-week trial. It was far from certain when they would return their verdict.
The maximum sentence for falsification of business records is four years imprisonment.
Six legal experts – including defense lawyers and former prosecutors – told Reuters it was rare for people without criminal histories – like Trump – who are charged solely with falsification of business records to be sentenced to prison time in New York, with punishments such as fines being more common.
But they said such a sentence would not be impossible, and cautioned that it was too early to predict what punishment Trump could face if convicted.
In deciding any sentence, Merchan may weigh the underlying seriousness of the charges due to their ties to the 2016 election, as well as Trump’s decision to go to trial rather than accept responsibility by pleading guilty.
Manhattan District Attorney Alvin Bragg’s office said in a court filing last November that it had brought 437 cases including a felony charge for falsifying business records in the decade before Trump was indicted in March 2023.
Reuters has not reviewed each of those cases, some of which involve corporate defendants who by definition cannot be incarcerated.
But records maintained by the Manhattan criminal court show that at least four defendants who pleaded guilty to that charge during that period were sentenced to a year or less behind bars. Three of those defendants, unlike Trump, were also charged with crimes such as fraud and grand larceny.
The fourth individual, a construction executive who pleaded guilty in December 2015 to one count of falsifying business records as part of a commercial bribery scheme, was sentenced to one year of intermittent imprisonment, court records show. That meant spending Monday evenings through Wednesday mornings at New York City’s Rikers Island jail, but he was free otherwise.
“It’s probably not that often that someone’s getting significant jail time on this particular charge,” said Tanisha Palvia, a former prosecutor in the Manhattan District Attorney’s Office.
“But because there’s so much discretion involved in this, it’s not unheard of that a person with no criminal history, a first-time offender, can get prison time,” said Palvia, now a defense lawyer with law firm Moore & Van Allen.
‘SENTENCING IS AN ART’
Merchan has acknowledged the possibility of incarcerating Trump.
“Everyone knows that if Mr. Trump is found guilty in this case he faces a potential jail sentence,” the judge said during jury selection on April 16, in explaining why he was dismissing a prospective juror who had written “lock him up” in a 2017 social media post about Trump.
Attempting to incarcerate a former president who may win the presidency again in November and is entitled to round-the-clock U.S. Secret Service protection would pose unprecedented challenges, though it is a conundrum other countries have faced.
In warning Trump on May 6 that he would be jailed for any further violations of a gag order restricting his public comments about jurors and witnesses, Merchan said he worried about how any such decision would affect court officers, corrections officials and Secret Service agents.
“Incarceration is truly a last resort for me,” Merchan said. “I worry about them and about what would go into executing such a sanction.”
At the time, Trump had been fined $1,000 for each of 10 violations of the gag order. To be sure, any sentence of incarceration would likely be greater in length and significance than a stint behind bars for gag order violations.
Another factor that Merchan may consider is Trump’s decision to take his case to trial. While any criminal defendant has the right to do so, judges often look favorably on people who admit culpability and express remorse.
“It’s hard to predict, but I would agree that it’s not an impossibility,” Rebecca Roiphe, a professor at New York Law School and a former prosecutor in the Manhattan District Attorney’s Office, said of a possible Trump incarceration. “Sentencing is an art, not a science.”
(Reporting by Luc Cohen in New York; Editing by Noeleen Walder and Howard Goller)
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