Will Donald Trump Be Free on Appeal?

David Jackson of USA Today has an article on Donald Trump’s preparations for a possible guilty verdict in the Stormy Daniels hush money case. On Friday, the prosecution announced they only have two witnesses left to call, including former Trump hatchet man Michael Cohen, and may well finish their presentation of the evidence by the end of next week. Astonishingly, Jackson manages to write an extensive piece without once contemplating a possible sentence if Trump is convicted. This seems to be a trend. Every time I see an article of this genre, I read it in the hope of getting some analysis of how Judge Juan Merchan might rule, and I generally get nothing.

An exception comes from David Stobbe of The Dispatch who looks at the logistics of sending an ex-president who has Secret Service protection to prison. He also helpfully discusses New York’s typical practices in cases like this, meaning Class E felonies. The maximum sentence is 4 years but of course he’s facing 34 counts. It’s highly unlikely that Merchan would treat each count separately, but theoretically he could. In practice, the sentencing range is more in the probation to two years range. Assuming the eventual sentence involves at least a few days of incarceration, the question is whether Trump would be free on appeal. Arguing in favor of this is the fact that he’s:

• a first-time offender,
• due to his age considered a vulnerable inmate, and
• in possession of a demonstrated record of showing up for his court appearances and not considered a flight risk.

I might add, he’s also a presidential candidate and jailing him would prevent him from campaigning.

The length of sentence will dictate which organization oversees his incarceration:

If Trump is sentenced to less than one year, the New York City Department of Correction would get the honor of dealing with the resulting headache (which includes figuring out how Secret Service protection factors into the incarceration). A sentence of more than a year would punt it to the New York State Department of Corrections and Community Service. Officials in both jurisdictions are probably praying the other gets responsibility. For both, the combination of Trump’s unique prison vulnerability, profile, and Secret Service protection would likely mean an unused section of an existing facility would have to be activated or some other structure would have to be designated as a temporary correction facility.

Now, there are still things I am curious about that are lacking in this analysis. First is the idea of being a first-time offender. In this case, this clearly means that Trump has never before been criminally convicted of a crime in New York, or any place else. But that doesn’t mean he has a good record in New York. Just in the time period since he was elected president in 2016, he’s paid out a $25 million judgment for running the fraudulent Trump University, and been held civilly liable for sexual assault and defamation. The Trump Foundation, a supposedly charitable organization, was shut down for misconduct, and Trump was fined $2 million for misusing charitable funds for his own political gain. And the Trump Organization was found guilty of criminal tax fraud and falsifying business records. In a criminal case involving falsifying business records, it seems like Trump has some priors, and I wonder if Merchan can consider that record when deciding on a sentence.

Second, there’s the matter of the so-far ten counts of criminal contempt of court that Merchan has issued to Trump during this trial. If the typical first-time offender only receives probation in cases like this involving falsifying business records, that doesn’t necessarily apply to defendants who show repeated contempt for the proceedings. And, of course, these contempt citations only arose because of a gag order that Trump violated. The gag order was only necessary because of Trump’s recored of intimidating witnesses and jurors. So, it’s a big ball of wax, and on the whole it presents an incentive to send a message to future defendants not to go after family members or staff of the presiding judge or otherwise try to terrorize the justice system and the integrity of trials.

And finally there’s the matter of remorse and accountability. A defendant who refuses to accept the guilty verdict and ask for forgiveness presumably can expect a harsher sentence. After all, in such situations there’s no reason to believe they won’t repeat their crime at the first opportunity.

I can imagine Merchan citing these considerations in choosing to impose a period of incarceration on the president. I don’t know that he will, but he can amply justify it. And some of the same considerations can go into whether the sentence will be stayed pending appeal. I’d argue that Trump actually is a flight risk. Imagine that he loses the election while his New York case in on appeal. What’s his incentive to stay in the United States knowing that he faces prison in not only the hush money case but the Georgia criminal case and two federal cases?

As for him being a vulnerable defendant due to his age, his Secret Service protection eliminates that as a concern. His record of inciting violence, most famously on January 6, 2021, also argues in favor of not leaving him free to rail against the nation’s legal systems.

I don’t envy Merchan if he has to make these decisions. There simply are not any solutions that will avoid vociferous criticism. As an example, imagine that he gives Trump some jail time but frees him on appeal to avoid disrupting the campaign. If Trump is then elected and takes office in the interim, and then loses his appeal, we’ll have a president in prison.

We should talk about these possibilities more, especially in articles that are purportedly about the outcome of this case.