Donald Trump’s unruly behaviour at trial makes him a candidate for jail time, as does his felony of falsifying business records. Photo / Doug Mills, The New York Times
Donald Trump faces sentencing on November 26. The election three weeks earlier may determine not only if he returns to the presidency, but if he ends up behind bars.
In November, after voters decide whether to return Donald Trump to the White House, the judge who oversaw his criminal trial could send him to jail.
And despite Trump’s political status, the judge has ample grounds to do so, a New York Times examination of dozens of similar cases shows.
The former President’s unruly behaviour at the New York trial makes him a candidate for jail time, as does his felony crime of falsifying business records: over the past decade in Manhattan, more than a third of these convictions resulted in defendants spending time behind bars, the Times’ examination found. Across New York state, the proportion is even higher – about 42% of those convictions led to jail or prison time.
The threat of incarceration magnifies the already enormous stakes of the election: Trump is running not only to reclaim the presidency, but also to remain a free man. While the daily tumult of the presidential race has somewhat obscured Trump’s legal woes – he is the first former president to become a felon and still faces other criminal cases – his legal and political fates remain inextricably entwined.
If he wins, Trump will almost certainly avoid incarceration for at least the next four years thanks to a long-standing federal prohibition, which state authorities are expected to honour, against prosecuting a sitting president. A Trump victory might also short-circuit his sentencing altogether: his lawyers have already persuaded the judge to postpone it until after election day, and they will undoubtedly demand an indefinite delay if he becomes the president-elect.
Even if Trump loses and is sentenced to jail, he could seek home confinement as a safety measure in the wake of multiple assassination attempts. He could also seek to remain free while appealing his conviction.
To avoid incarceration altogether, Trump’s lawyers will likely argue that he is a first-time felon convicted of a non-violent crime, and that a single day behind bars would make him a political prisoner. They could also make a bid for leniency, noting that Trump is 78 years old, a factor that might lead the judge to impose probation rather than incarceration.
But Trump is loath to acknowledge a political liability like his advanced age. And he might not catch many special breaks from no-nonsense Judge Juan M. Merchan, who presided over Trump’s seven-week trial in April and May and vowed to apply “the rules of law evenhandedly”.
Ever since Trump was indicted last year for falsifying records to cover up a sex scandal, he has routinely assailed Merchan and his family. Trump also repeatedly violated Merchan’s order prohibiting attacks on witnesses and the jury, displaying a brazen disrespect for courtroom decorum and the broader rule of law that led the judge to cite him for contempt.
Merchan’s handling of other cases suggests he will not take this behaviour lightly. The judge has doled out jail sentences to other white-collar offenders, including Trump’s former chief financial officer. He also routinely scrutinises a defendant’s character and conduct when weighing a punishment.
“He is well within his rights to consider Trump’s contemptuous behaviour,” said Martin F. Horn, a professor emeritus at John Jay College of Criminal Justice who has served as executive director of the New York State Sentencing Commission and led both the city’s Department of Correction and its Probation Department.
The judge, he said, will also have to consider the recommendation of the Probation Department, which met with Trump after his conviction and is required to produce a confidential report to help determine his punishment. Prosecutors from the Manhattan district attorney’s office are expected to submit their own confidential recommendation to the judge in November, about 10 days before the sentencing, and it is unclear whether they will seek to jail Trump.
Merchan has wide discretion in choosing a punishment for falsifying business records in the first degree, a Class E felony, the lowest level under the state’s penal law. And although Trump faces up to four years behind bars – any time over a year he would serve inside a prison – legal experts say the judge is more likely to sentence him to less than a year of incarceration, which he would probably spend at one of the city’s jails. Or he may not incarcerate him at all. There is no minimum sentence for his crime, and Trump could receive nothing more than probation.
Whatever punishment he chooses, Merchan will have to consider what sentence might deter the former President from repeating his crimes.
“He’s looking at what his options are under New York law – to impose a sentence that is sufficiently severe, to be commensurate with the conduct that has been proven,” Horn said, adding that “a short jail stay may be the way”.
Over the past decade or so, the most likely punishment for someone in New York state convicted on a top charge of felony falsification of business records was jail or prison time, according to data from the New York State Division of Criminal Justice Services. The data shows that 204 people ended up behind bars for that crime, while 174 received probation and no jail time.
The Times review of false records convictions in Manhattan alone – which was based on data from state and local agencies and verified by case files retrieved from the clerk’s office – similarly supports the notion that Trump could spend a few weeks or months in jail.
The Times found 30 cases in Manhattan since 2014 in which a person was convicted and sentenced on a top charge of felony falsification of business records. Of those cases, only five resulted in probation and no jail time, while 11 involved incarceration.
Defendants in nine of the 11 cases were first-time felony offenders like Trump and received sentences between one week and 364 days in jail, with the most frequent jail sentence being six months. The other two defendants, both of whom had been previously convicted of felonies, received more than a year in prison.
All but one of the other defendants received a so-called conditional discharge, a sentence that allows them to avoid probation or jail if they follow certain conditions, such as maintaining employment or paying restitution. The remaining man received only community service and a fine.
Trump is not a likely candidate to receive these softer punishments. Unlike Trump, who fought his case at trial and is now appealing, nearly every person who avoided jail had reached a plea deal, a resolution in which defendants agree to accept responsibility for their crimes. Plea deals, which allow the Government to forgo the expense and effort of a trial, often reduce a defendant’s sentence. Trump, who maintains his innocence, opted not to pursue that leniency.
And Trump, of course, is like no other defendant cycling through the grim halls of the lower Manhattan courthouse where his trial took place. He is also running in a deadlocked race for the presidency, crisscrossing swing states, holding rallies and raising money as he battles his Democratic rival, Vice-President Kamala Harris.
With the sentencing coming against the backdrop of the election, Merchan faces an unparalleled dilemma of whether to become the first judge to incarcerate a former US president.
Michael J. Obus, a retired New York judge who presided over false records cases during his time on the bench and oversaw all judges hearing felony cases in Manhattan, called Merchan’s decision “somewhat excruciating”.
“It’s probably the only case of its kind that any judge will ever see,” said Obus, who is friendly with Merchan.
A spokesperson for the court system declined to comment, as did a spokesperson for Manhattan District Attorney Alvin Bragg.
Bragg’s case centred on Trump’s effort to conceal a sex scandal involving a porn actor that could have derailed his 2016 campaign. Trump’s former fixer, Michael Cohen, brokered a $130,000 hush money deal with the porn actor, Stormy Daniels, to bury her story of a liaison with Trump. After Trump was elected, he repaid Cohen and approved plans to falsify paperwork to hide the true nature of the reimbursement.
Underscoring the case’s importance, Bragg’s prosecutors went beyond the documents, asserting that Trump falsified them to orchestrate a broader conspiracy to influence the election, something Merchan could consider when determining a punishment.
Trump’s sentencing, now scheduled for November 26, comes after his lawyers lodged a series of excuses to delay it. Merchan granted two delays, most recently conceding that waiting until after the election “best advances the interests of justice”.
But the judge has grown impatient with the former President, and has refused Trump’s repeated requests that he step aside from the case, recently calling Trump’s arguments in a court filing “nothing more than a repetition of stale and unsubstantiated claims”.
At trial, Merchan contended with a recalcitrant defendant who appeared to delight in flouting courtroom norms. Trump attacked Merchan and his family on social media, fuelling threats against his daughter, a Democratic political consultant.
Trump also violated a gag order against him 10 times during the course of the trial, a striking display of disobedience that led Merchan to impose $10,000 in fines and threaten to throw the former President in jail if the violations continued.
If Bragg decides to seek a jail sentence for Trump, prosecutors could highlight that pattern of misbehaviour, as well as Trump’s other recent legal troubles. For instance, a New York judge in February ordered Trump to pay some $450 million in a civil case, concluding that he had fraudulently inflated his net worth and that his lack of contrition “borders on pathological”. (Trump is appealing.)
Even before the former President’s criminal case landed in Merchan’s courtroom, the judge had shown little tolerance for the misdeeds of Trump’s associates.
In 2023, he ordered Trump’s family business, the Trump Organisation, to pay the maximum penalty of US$1.6 million following its conviction on felony tax fraud and other charges. He also sentenced Allen H. Weisselberg, the former chief financial officer who orchestrated the tax scheme and who was then 75, to five months in jail after he pleaded guilty.
It could have been worse: Merchan, a former prosecutor, once warned Weisselberg’s lawyers that he did not believe that white-collar criminals deserved special treatment or light sentences.
The judge showed a stern streak in other cases as well. In 2014, he imposed the maximum of 25 years to life in prison in a murder case, calling it “an easy call” as he excoriated the defendants for being “so completely bereft of redeeming qualities”.
And in 2018, Merchan sentenced a 63-year-old man to as long as 21 years behind bars after he was convicted of a financial scheme. In handing down the sentence, Merchan said that white-collar criminals too often received special treatment.
“This was not a crime of need,” Merchan said during the sentencing hearing. “This was clearly a crime of greed.”
This article originally appeared in The New York Times.
Written by: Kate Christobek, Ben Protess and William K. Rashbaum
Photographs by: Doug Mills and Ahmed Gaber
©2024 THE NEW YORK TIMES
Russell Vought was a key architect of Project 2025.