For all the attention to and debate over 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 jail time.
The case — brought by Alvin Bragg, the Manhattan district attorney, against Mr. Trump — represents the first time in our nation’s history that a former president is a defendant in a criminal trial. As such, it has generated lots of debate about the case’s legal strength and integrity, as well as its potential impact on Mr. 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 Mr. Trump is found guilty, incarceration is an actual possibility. It’s not certain, of course, but it is plausible.
Jury selection has begun, and it’s not too soon to talk about what the possibility of a sentence, including a jail sentence, would look like for Mr. 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 Mr. Trump. Mr. Bragg is arguing that the cover-up cheated voters of the chance to fully assess Mr. Trump’s candidacy.
This may be the first criminal trial of a former president in American history, but if convicted, Mr. 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. My research encompassed almost 10,000 cases of felony falsifying business records that have been prosecuted across the state of New York since 2015. Over a similar time period, the Manhattan D.A. has charged over 400 of these cases. In roughly the first year of Mr. Bragg’s tenure, his team alone filed 166 felony counts for falsifying business records against 34 people or companies.
Contrary to claims that there will be no sentence of incarceration for falsifying business records, when a felony conviction involves serious misconduct, defendants can be sentenced to some jail time. My analysis of the most recent data indicates that approximately one in 10 cases in which the most serious charge at arraignment is falsifying business records in the first degree, and in which the court ultimately imposes a sentence, results in a term of imprisonment
To be clear, these cases generally differ from Mr. Trump’s case in one important respect: They typically involve additional charges besides just falsifying records. That clearly complicates what we might expect if Mr. 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 Mr. Trump — and jail time was imposed. For instance, Richard Luthmann was accused of attempting to deceive voters — in his case, 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 incarceration on the felony falsification counts (although the sentence was not solely attributable to the plea).
A defendant in another case was accused of stealing in excess of $50,000 from her employer and, like in this case, falsifying one or more invoices as part of the scheme. She was indicted on a single grand larceny charge and ultimately pleaded guilty to one felony count of business record falsification for a false invoice of just under $10,000. She received 364 days in jail.
To be sure, for a typical first-time offender charged only with run-of-the-mill business record falsification, a jail sentence would be unlikely. On the other hand, Mr. Trump is being prosecuted for 34 counts of conduct that might have changed the course of American history.
Seriousness of the crime.Mr. 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.To date,Mr. 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. Justice Merchan’s evaluation of Mr. Trump’s history and character may also be informed by the other judgments against him, including Justice Arthur Engoron’s ruling that Mr. Trump engaged in repeated and persistent business fraud, a jury finding that he sexually abused and defamed E. Jean Carroll and a related defamation verdict by a second jury.
Justice Merchan may also weigh the fact that Mr. Trump has been repeatedly held in contempt, warned, fined and gagged by state and federal judges. That includes for statements he made that exposed witnesses, individuals in the judicial system and their families to danger. More recently, Mr. Trump made personal attacks on Justice Merchan’s daughter, resulting in an extension of the gag order in the case. He now stands accused of violating it again by commenting on witnesses.
What this all suggests is that a term of imprisonment for Mr. Trump, while far from certain for a former president, is not off the table. If he receives a sentence of incarceration, perhaps the likeliest term is six months, although he could face up to four years, particularly if Mr. Trump chooses to testify, as he said he intends to do, and the judge believes he lied on the stand. Probation is also available, as are more flexible approaches like a sentence of spending every weekend in jail for a year.
We will likely know what the judge will do within 30 to 60 days of the end of the trial, which could run into mid-June. If there is a conviction, that would mean a late summer or early fall sentencing.
Justice Merchan would have to wrestle in the middle of an election year with the potential impact of sentencing a former president and current candidate.
If Mr. Trump is sentenced to a period of incarceration, the reaction of the American public will likely be as polarized as our divided electorate itself. Yet as some polls suggest — with the caveat that we should always be cautious of polls early in the race posing hypothetical questions — many key swing state voters say they will not vote for a felon.
If Mr. Trump is convicted and then loses the presidential election, he will likely be granted bail pending an appeal, which would take about a year. That means if any appeals were unsuccessful, he would likely have to serve any sentence starting sometime next year. He would be sequestered with his Secret Service protection — if it is less than a year, likely in Rikers. His protective detail would likely be his main company; Mr. Trump would surely be isolated from other inmates for his safety.
If Mr. Trump wins the presidential election, he can’t pardon himself because it is a state case. He would be likely to order the Justice Department to challenge his sentence, and department opinions have concluded that a sitting president could not be imprisoned, since that would prevent the president from fulfilling his or her constitutional duties. The courts have never had to address the question, but they could well agree with the Justice Department.
So if Mr. Trump is convicted and sentenced to a period of incarceration, its ultimate significance is likely this: When the American people go to the polls in November, they would be voting on whether Mr. Trump should be held accountable for his original election interference.
Norman L. Eisen investigated the 2016 voter deception allegations as counsel for the first impeachment and trial of Donald Trump and is the author of “Trying Trump: A Guide to His First Election Interference Criminal Trial.”
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