The question likely on many people’s minds is what will happen next in former President Donald Trump’s criminal case.
Will he go to prison? What will be Trump’s likely grounds for appealing the ruling? Can he appeal directly to the U.S. Supreme Court?
Twelve New York City jurors found Trump guilty Thursday on all 34 felony counts in a much-disputed case of falsifying business records in relation to payments made to adult film star Stormy Daniels and others during the 2016 presidential campaign.
Manhattan District Attorney Alvin Bragg indicted Trump on falsifying the records in the first degree, taking what are normally misdemeanor violations and making them felonies by alleging that the former president was seeking to hide an underlying crime.
But Bragg was not clear on what the underlying crime was, although he suggested when he announced the charges that it had to do with a reported $130,000 payment made to Daniels being a federal campaign finance violation.
Both the Federal Election Commission and the Justice Department, which have jurisdiction over campaign finance law, reviewed the payments and declined to prosecute.
Trump responded to the verdict Thursday saying, “This was a rigged trial by a conflicted judge who was corrupt.”
The next event scheduled on the court docket is the sentencing hearing, which Manhattan Supreme Court Judge Juan Merchan has set for July 11, four days before the start of the Republican National Convention, where the party is expected to officially choose Trump as their nominee.
Trump will have 30 days to appeal the ruling in the case once Merchan’s sentence has been handed down.
The former president’s legal team could immediately request a stay on any sentence the judge decrees, while Trump’s appeal goes forward.
Is Trump Going to Prison?
Legal experts appear to largely believe that prison time for Trump is possible, but not likely. He is a first-time offender and falsifying business records is a low-level crime.
CBS News reported, “The minimum sentence for falsifying business records in the first degree is zero, so Trump could receive probation or conditional discharge, a sentence of no jail or up to four years for each offense. Trump would likely be ordered to serve the prison time concurrently for each count, so up to four years, total.”
Merchan has complete discretion in the matter, which likely worries many, given the decisions he made during the trial, including in his jury instructions, which legal experts felt strongly favored the prosecution and made Trump’s conviction far more likely.
Dan Horwitz, a former white-collar crimes prosecutor in the Manhattan District Attorney’s office, told CBS that the judge could sentence Trump “to a period of months in jail, he could sentence him to a period of weeks in jail, he could sentence him to a sentence where he is required, for example, to go to jail every weekend for a period of time and then serve the rest of the sentence on probation.”
An analysis conducted by author Norman Eisen determined that only 10 percent of business record cases with felony in the first degree conviction resulted in 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,” Eisen noted in The New York Times.
Former Manhattan assistant district attorneys Jeremy Saland and Duncan Levin split on whether Trump will be required to serve time, New York’s Spectrum News reported.
Saland said he believes Trump will not be imprisoned, given “the collateral ripple effects of a former and potential future president being incarcerated.”
Levin was not so sure.
“It’s an E felony, it’s a low-level felony case. He’s a first-time offender, but he violated the gag order 10 times, he’s been found in criminal contempt,” Levin said, meaning Merchan may take that into account when deciding whether to impose jail time.
If the judge chooses not to imprison Trump, he could place conditions on his discharge or place him in home confinement, given the Secret Service protection the former president receives, by law.
George Washington Law School professor Jonathan Turley said he sees jail time for Trump as a possibility, but, “It is much more likely that Merchan will impose a sentence without a jail sentence, though with fines.”
The law professor thinks that Merchan could also opt for home confinement or weekend jailing, but those options would of course interfere with Trump’s ability to campaign or, if elected, be president.
“Even the probation process will be awkward since a convicted defendant ordinarily has to get approval for any travel outside of the state from his probation officer,” Turley highlighted.
That’s to say nothing of traveling outside the country, as presidents normally do on a regular basis.
Grounds for Appeal
There are multiple grounds for Trump to appeal Thursday’s ruling.
“For those upset by this verdict, remember, this remains a country committed to the rule of law, and this is going to go up on appeal. I think it’s going to be reversed in the state or federal systems,” Turley told Fox News Thursday.
In his jury instructions, Merchan told the 12 jurors that if they found Trump guilty of violating New York tax law, federal campaign finance law (which New York has no jurisdiction over) or falsifying other business records such as bank records, they could convict the former president on the primary crime of falsifying business records.
In other words, the jury breakdown could be four-four-four in what they believed Trump did wrong, which is certainly not the unanimous verdict required under our system of criminal justice, Turley argued.
It also raises grounds for appeal under the U.S. Constitution’s Sixth Amendment, which states the defendant has the right “to be informed of the nature and cause of the accusation.” In other words, one has to know precisely what he or she is being accused of in order to prepare a legal defense.
Trump posted on Truth Social ahead of Thursday’s verdict that Merchan did not allow him to present evidence that he had not violated tax law.
Former federal prosecutor Andy McCarthy said Wednesday on Fox News concerning Merchan’s jury instructions, “It’s really outrageous, because in a normal criminal case, every statutory crime has what we call elements of the offense.”
“Those are the things the jury has to agree on unanimously that were proved beyond a reasonable doubt,” he explained.
In this case, “What makes it a felony is that you’re concealing or committing another crime, and here the judge is telling them they don’t have to agree about what the other crime is,” McCarthy said.
Additionally, Trump has the right, under the Sixth Amendment, to “have compulsory process for obtaining witnesses in his favor,” which Merchan also denied.
Trump’s attorneys wanted to put former Federal Election Commission Chairman Bradley Smith on the stand, but the judge so limited his testimony that they decided it would be of no help to the case.
What Smith said he was fully prepared to address was a question at the heart of the matter: Did a payment Michael Cohen, then Trump’s personal attorney, made to Daniels qualify as a campaign expense?
And Smith’s testimony to the jury would have been, “No.”
“Federal law does not say that anything that you think might help you win an election is a campaign expense. Rather, it’s an objective test, in which things like polling, paying for staff, paying for headquarters, paying for advertisements and so on — those are campaign expenses,” Smith told Fox News host Laura Ingraham in March.
Other grounds for appeals could be Merchan’s failure to recuse himself, given his past donations to Biden in 2020 and other Democratic efforts opposed to Trump.
Additionally, Merchan’s daughter is a Democratic fundraiser and her company has been raising money by referring to the trial.
One can imagine howls of “bias” that would have occurred on the Democratic side and many in the media had the judge donated even $1 to Trump’s 2020 campaign.
Further, Merchan allowed highly prejudicial and salacious testimony from Daniels that had nothing to do crimes at hand to the point where Trump’s legal team called for a mistrial during the hearing, twice, Reuters reported.
The judge agreed the testimony went far astray.
“There were some things that would probably have been better left unsaid,” Merchan said on May 7. “I was surprised that there were not more objections.”
Appeal to the U.S. Supreme Court
Trump plans to appeal the cases within the New York court system, going first to the New York Appellate Division and then to the New York Court of Appeal, if the court agrees to hear the case, according to Axios.
Trump legal spokesperson Alina Habba says that all options are on the table, including going to the U.S. Supreme Court, if necessary.
“There were incredible constitutional violations in this whole proceeding, including the current gag order that’s on me, the president and anybody that works for him,” she told Fox Business on Friday regarding a SCOTUS appeal.
Alina Habba says Trump’s legal team will take their fight to overturn his conviction to the Supreme Court if necessary.pic.twitter.com/0Sa5TmgF3z
— The Post Millennial (@TPostMillennial) May 31, 2024
Fox News host Mark Levin, who served as chief of staff to Attorney General Edwin Meese during the Reagan administration, argued Friday that Trump’s lawyers should both appeal the case through the New York appellate system and file a petition at the U.S. Supreme Court now.
“The whole purpose of this case was to affect the election,” he said, and going the normal appellate route, with no decision likely until after the election, would not serve the cause of preventing New York from further interfering in the presidential race.
Even if there’s a 10 percent chance the justices would take the case, it’s worth trying to get it out of the “mire” of the heavily biased New York justice system, Levin contended.
He said that the presidential race and the federal election law important to Bragg’s case fall under federal jurisdiction, meaning the U.S. Supreme Court can intervene.
Levin noted that the Supreme Court did so in the 2000 election between George W. Bush and Al Gore, when the Florida Supreme Court kept “changing the election rules” during vote recounting.
“You cannot allow a single judge, a single judge to determine what our federal campaign laws are, what a presidential election is going to look like, and try to influence a presidential election,” Levin said. “The impact is national. The impact is right now, in the middle of a presidential election.”
Harvard Law School professor emeritus Alan Dershowitz concurred that SCOTUS can get involved in the case.
“If the court granted review in this case, they would reverse,” he told Fox Business on Friday. “And I think there is a way of expediting the appeal.”
Dershowitz advised Trump’s lawyer to go right to the federal appellate court level and seek an expedited judgment and then take it to the U.S Supreme Court next, if necessary.
“The Supreme Court should take this case, should reverse the conviction and let the voters decide who should be president without the thumb of an illegal prosecution on the scales of the election,” he said.
Conclusion
Is Trump going to prison? Possible, but not likely.
He has good grounds to appeal the case, if necessary to the U.S. Supreme Court.
