Could Donald Trump actually end up in jail if convicted in the hush money trial? Jail time, misdemeanor charges and more fines are all on the table
Donald Trump’s legal team had reason to hope that Michael Cohen’s appearance on the witness stand could cast reasonable doubt in the minds of at least one juror in the Stormy Daniels trial.
But Trump is still days away from the culmination of a trial that could see him serve up to four years in prison if convicted of all 34 felony counts of falsifying company records related to the porn star’s payoff.
“Probably the worst outcome is that Trump is found guilty of multiple crimes and is therefore forever more of a convicted felon and a felon,” said Eugene O’Donnell, who teaches law at the John Jay College of Criminal Justice.
Judge Juan Merchan says he has no desire to put a former president behind bars.
“The last thing I want to do is put you in jail,” Merchan told Trump this month, even as he held him in contempt and fined him a total of $10,000 for violating a gag order restricting his comments on the case established ties.
“You are the former president of the United States, and possibly the next president. There are many reasons why incarceration is really a last resort for you.”
That’s an issue the jury may be thinking about as they weigh guilt or innocence, though Merchan will instruct them to focus on the facts of the case.
Defense attorneys are almost done cross-examining Michael Cohen in Donald Trump’s Stormy Daniels hush money case. Experts say Trump is unlikely to receive a prison sentence even if convicted
What if the jury finds him guilty of felony forgery?
The first key is the jury — not just whether it will convict, but whether it decides to convict Trump on all 34 charges, which involve Trump Organization documents, check stubs and documents that hid the payments. (Cohen’s fees dropped because legal fees and documents stated he had a legal retainer, which Trump says is correct).
“In practice, the most likely outcome would be a probation sentence, which would be no small matter because he would be a typical convict forced to submit to the indignities associated with probation, including restrictions on his liberty and freedom. I think there may be drug and alcohol testing,” O’Donnell told DailyMail.com.
All of that would happen if Trump continues to enjoy Secret Service protection as established by law and policy. “It is not impossible to impose a prison sentence if the judge finds his conduct to be persistent, egregious and Trump completely unrepentant,” he said, calling it highly unlikely in New York County.
Judge Juan Merchan could determine Trump’s sentence if the former president is convicted. First he would ask for sentencing memos from both sides
Michael Cohen testified that he committed a series of lies, but said many of them were on behalf of his former boss, Donald Trump
Hung jury option
Another possibility is that, given the high stakes and conflicting testimony, the jury simply cannot reach a verdict. That would result in a hung jury and a mistrial.
That would put the ball back in District Attorney Alvin Bragg’s court. He has already drawn criticism — and arrows at Trump’s team — for initiating an investigation that was seemingly shelved when he took over.
Even if he decides to proceed, a new trial would take place well after the November election.
A felony compromise?
A conviction could theoretically subject Trump to a prison sentence of one year to four months and four years.
But he has a lot in his favor. He has never been convicted of a crime. He has a non-violent record and the things he is accused of are all non-violent offenses.
“For a Class E felony, which is what this is, with someone who has had no prior contact with the criminal justice system, it would be highly unlikely that he or she would serve a prison sentence,” said Adam Shlahet, a former prosecutor and defense attorney in New York. attorney who directs Fordham Law School’s Trial Advocacy Center.
“I would assure a client he doesn’t have to worry about going to jail. But this is different, right? It’s hard to know what this judge will do. I think a prison sentence is still unlikely. But this is a unique case. It’s on the table, but I don’t think it’s realistically on the table,” he told DailyMail.com.
The judge can consider “virtually anything” during sentencing, and if he finds that the suspect is not respecting the rule of law, he can say probation “is insufficient,” Shlahet said.
Even probation is not a piece of cake and requires regular reporting to authorities, and violations can lead to jail time.
Prosecutors and defense attorneys would prepare sentencing memos in the event of a conviction.
The judge could even recognize Trump’s public service as president (though there are some strikes against him in civil court. Trump paid $25 million fine in Trump University case, appeals $83 award million in the E. Jean Carroll case, and is owed $454 million after a judge found he committed civil fraud).
A more likely option in the event of a conviction could be probation and a large fine, experts say.
But that also carries a burden and a stigma. Star witness Michael Cohen has repeatedly stated in court testimony that he is still on supervised release.
Even as the trial continues, the judge could still jail Trump for what he has said are repeated violations of the silence order, though he has expressed reluctance to do so.
One option is that prosecutors or defense attorneys could ask the judge to charge Merchan with “lesser offenses.”
They could ask for a jury instruction telling the panel they can charge the suspect with the crime of falsifying business records, rather than the misdemeanor, according to NYU’s Brennan Center.
That could provide a way out if divisions arise among the jury, which includes people who live across Manhattan and work in finance and other industries.
Trump could still defy time, but it would be less likely and for less time. Here, according to the Brennan Center, it can carry up to a year in jail, plus fines and penalties.
This option could arise if the panel buys the prosecutor’s paper trail showing the forged documents, but has doubts about Michael Cohen’s testimony about how it came about — after attorney Todd Blanche confronted him with text messages messages and said to him: ‘That was a lie!’
Open the professions
Trump’s lawyers, who have successfully blocked three other criminal charges, will certainly appeal any conviction. (Trump and co-defendants received a ruling Thursday that continues their appeal of a decision allowing Fulton County District Attorney Fani Willis to remain in the Georgia election case).
That would hold up any punishment for months.
Secret Service officials have already done that been involved in discussions about how Trump would be moved and protected if he were given a short sentence.
Even with a conviction, Judge Merchan could choose to delay sentencing while Trump’s lawyers appeal the case, delaying a day of reckoning as Trump tries to overturn the case.