Now that he has been convicted, a New York judge will have to determine an appropriate sentence for Donald Trump
By Jacob Mershon, Rising 3L at New England Law | Boston
May 30, 2024 will be looked back on as a historic day in American history. A former President of the United States and the presumptive nominee for the Republican Presidential ticket, Donald Trump, was convicted on thirty-four felony counts, making him the first President to be a convicted felon. These charges stem from the former President’s 2006 sexual encounter with Stormy Daniels, an adult film actress whose real name is Stephanie Clifford. Ms. Daniels wished to sell the story of her affair to the then-reality TV star and business mogul to any outlet that would publish it. One of those outlets was the National Enquirer. Following the controversial Access Hollywood tape, where Trump detailed to host Billy Bush his various sexual escapades. The National Enquirer wished to suppress the story of the affair after the Access Hollywood tape leaked. The National Enquirer then negotiated a $130,000 non-disclosure agreement (NDA) between Daniels and Michael Cohen. Cohen eventually cobbled together the money from a home equity line of credit to pay Daniels through a Delaware shell company. The money, which the prosecution in the present case argued, was reimbursed to Mr. Cohen in the form of various checks signed by the former President. In August of 2018, Cohen was indicted in the Southern District of New York on various charges related to his dealings with Mr. Trump, including tax evasion and making false statements. Cohen was sentenced to three years in prison. Subsequently, in March of 2023, Manhattan District Attorney Alvin Bragg brought a thirty-four count indictment against the former President, accusing him of falsifying business records, with each count relating to a specific document that was alleged to be falsified. On May 30, 2024, after a multiple-weeklong trial, former President Trump was convicted on all thirty-four counts by a jury of his peers. Judge Juan Merchan has set the sentencing date for July 11, 2024.
In the meantime, all we can do is speculate as to what will happen next. Mr. Trump was convicted of what is known as a Class E felony, which is the lowest level felony in the state of New York. New York Penal Code Chapter 40, Part 2, Title E, Article 70 subsection 2e states “The maximum term of an indeterminate sentence shall be at least three years and the term shall be fixed as follows: for a class E felony, the term shall be fixed by the court, and shall not exceed four years.” The state of New York actually has no sentencing guidelines aside from what is provided in statutes, so speculation runs rampant.
There is no mandatory minimum sentence for the crimes of which the former President was convicted, so the minimum sentence for each count is zero years jail time and the maximum is four years of jail time, per the aforementioned New York statute. Norman Eisen, the special counsel who was involved with the former President’s first impeachment trial, did an analysis of prior cases of falsifying business records in the first degree, and found that only ten percent of those cases resulted in some form of incarceration. However, those cases with incarceration also involved more serious crimes, so, if Eisen is correct, the chances that the former President is sentenced to any sort of incarceration are slim. However, that does not mean that the former President is off the hook in terms of any sort of non-fine-based penalties. Dan Horwitz, a former white-collar prosecutor at the Manhattan District Attorney’s office stated that the most likely outcome of the case is a form of house arrest, the middle ground between incarceration and no punishment whatsoever. This would also make it so the former President could still campaign for the 2024 race, just from within the confines of his Mar-a-Lago home.
Again, this is all simply speculation, as we have no idea as to what Judge Juan Merchan will decide when sentencing comes on July 11. The former President has not exactly been quiet on the topic of Judge Merchan, calling him “corrupt” and “conflicted,” as recent as minutes after being convicted of all counts in his courtroom. A judge can use a defendant’s conduct during the trial in their sentencing decisions, and Mr. Trump’s constant violations of Judge Merchan’s gag order pertaining to potential jurors, witnesses, attorneys and courts staff certainly is not doing the former President any favors regarding sentencing considerations.
The former President will most likely appeal his conviction, and may very well move to stay the execution of his sentence pending the appeal. Should the former President be elected this November, he will not be able to pardon himself, as these are state convictions, and the President only has the authority to pardon those with federal convictions.
There has been quite a bit of conflicting information pertaining to former President Trump’s ability to vote, since he is a resident of the State of Florida, and Florida does not allow convicted felons to vote. However, this only applies to felonies committed within the State of Florida or felonies committed in a state that does not permit convicted felons to vote. Since New York permits convicted felons to vote, Mr. Trump will still be able to vote in the November 2024 election.
Ultimately, we all wait with baited breath for July 11th when Judge Merchan hands down his sentence upon former President Trump.
