For all the attention to the unfolding trial of Donald Trump in Manhattan, there has been surprisingly little of it paid to a key element: its possible outcome and, specifically, the prospect that a former and potentially future president could be sentenced to prison time.
The case – brought by Alvin Bragg, the Manhattan district attorney, against Trump – represents the first time in our nation’s history that a former president is a defendant in a criminal trial. It has generated debate about the case’s legal strength and integrity, as well as its potential impact on Trump’s efforts to win back the White House.
A review of thousands of cases in New York that charged the same felony suggests something striking: If Trump is found guilty, incarceration is an actual possibility. It’s not certain, of course, but it is plausible.
It’s not too soon to talk about what the possibility of a sentence, including a prison sentence, would look like for Trump, for the election and for the country – including what would happen if he is re-elected.
The case focuses on alleged interference in the 2016 election, which consisted of a hush-money payment Michael Cohen, the former president’s fixer at the time, made in 2016 to a porn star, Stormy Daniels, who said she had an affair with Trump. Bragg is arguing that the cover-up cheated voters of the chance to fully assess Trump’s candidacy.
If convicted, Trump’s fate is likely to be determined by the same core factors that guide the sentencing of every criminal defendant in New York State Court.
Comparable cases. The first factor is the base line against which judges measure all sentences: How other defendants have been treated for similar offenses.
When a felony conviction involves serious misconduct, one in 10 cases results in a term of imprisonment.
These cases generally differ from Trump’s case in one important respect: They typically involve additional charges besides just falsifying records. That clearly complicates what we might expect if Trump is convicted.
Nevertheless, there are many previous cases involving falsifying business records along with other charges where the conduct was less serious than is alleged against Trump and prison time was imposed.
For instance, Richard Luthmann was accused of impersonating New York political figures on social media in an attempt to influence campaigns. He pleaded guilty to three counts of falsifying business records in the first degree, as well as to other charges. He received a sentence of four years.
To be sure, for a typical first-time offender charged only with run-of-the-mill business record falsification, a prison sentence would be unlikely. On the other hand, Trump is being prosecuted for 34 counts of conduct that might have changed the course of American history.
Seriousness of the crime. Bragg alleges that Mr. Trump concealed critical information from voters (paying hush money to suppress an extramarital relationship) that could have harmed his campaign, particularly if it came to light after the revelation of another scandal – the “Access Hollywood” tape. If proved, that could be seen not just as unfortunate personal judgment but also, as Justice Juan Merchan has described it, an attempt “to unlawfully influence the 2016 presidential election.”
History and character. Trump has been unrepentant about the events alleged in this case. There is every reason to believe that will not change even if he is convicted, and lack of remorse is a negative at sentencing.
Merchan may also weigh the fact that Trump has been repeatedly held in contempt, warned, fined and gagged by state and federal judges.
If he receives a sentence of incarceration, the likeliest term is six months, although he could face up to four years, particularly if Trump chooses to testify and the judge believes he lied on the stand. Probation is also available.
If Trump wins the presidential election, he can’t pardon himself because it is a state case.
If Trump is convicted and incarcerated, its ultimate significance is probably this: The American people will be voting on whether Trump should be held accountable for his original election interference.
Norman L. Eisen contributes Opinion columns to The New York Times.
