This. The court isn’t responsible for preserving American democracy…but it IS responsible for doing what it can (without infringing free speech) to uphold public faith in the New York State court system.
Great piece in the New York Times today presenting arguments pro and con on whether Trump should go to prison.
The author arguing for a prison sentence (a lawyer) took a look at thousands of New York prosecutions for falsifying business records in the last nine years. He says that 10 percent of them involved incarceration. He also points out that Trump’s defiance and lack of contrition “can and should” support the argument for a prison sentence.
A federal judge contributed the argument against prison. Most of it actually comes off as an argument in favor of prison. And her concluding graph is a master class in muddled thinking!
(gift link:)
Because I believe he’s going to take lots of things into consideration.
He will certainly consider custom and practice in the State of New York for like-situated defendants: First time offender, older person, etc.
He will also give some weight to the totally unique considerations in this case, such as someone being a former president, the need to accommodate Secret Service personnel and the impact on an upcoming election of jailing one of the principle candidates during the most critical part of the campaign.
He’s also going to consider Trump’s lack of remorse as demonstrated daily, the danger he continues to pose to jurors, witnesses, court personnel and law enforcement, as well as Trump’s multiple impending legal entanglements.
Lastly, he is going to consider the seriousness of Trump’s offense with respect to its impact on the 2016 election. Judges can and do make examples of some offenders in the hope it will deter others from doing similar things.
On balance, I expect he is going to impose a fairly serious period of confinement. Four years in State Prison for each count, served concurrently.
Then I think he’s going to stay the custodial part of the sentence pending the outcome of Trump’s appeals, grant bail on appeal and simultaneously impose quite a lot of conditions of Trump’s probation.
If Trump violates any of those conditions, he can be immediately remanded to custody to commence service of his sentence and pursue his appeals like any other defendant: From inside.
No, they’re not going to suddenly stop crying about election interference or lawfare if Merchan grants bail. Nothing is going to stop that. But it will look a lot stupider for them to keep crying about it if Trump is actually out, you know, not being interfered with, campaigning and doing election stuff.
And in this way, Trump’s continued freedom for the duration of the campaign is entirely in his own tiny hands. The hard core base will never stop yammering. But perhaps some independents will appreciate the hypocrisy.
That’s my reasoning, anyway.
I agree with most of your post - except I think the sentence will be one year, rather than four.
Definitely the sentence suspended with conditions though. Really tough conditions like “Trump cannot threaten the jury members with death”
You may be right. But what Trump did was serious, and I think Judge Merchan will want to make that point.
Indeed. If the sentence turned out to be “You must go to McDonalds and have a Quarter Pounder With Cheese” they would cry about it. At this point the only response I’ve got is “Kleenex is in aisle 5, next to the toilet paper”.
Really! If you deleted the first paragraph, one would expect the final paragraph to start with “And that’s why I believe incarceration is appropriate.”
Don’t know if this was mentioned upthread, but Michael Cohen pointed out that one risk of incarceration is that a guy like Trump might trade away highly-important national secrets in prison in exchange for ramen, tuna, stamps, whatever.
LOL, yeah, 'coz guys like that on the inside will be able to do a lot with that stale, now-well-known-to-be-compromised information.
Better to leave Trump on the outside, where he might meet with people like Paul Manafort and give them the stale information instead. I’m sure Manafort doesn’t know anyone who can use it.
And what are the odds Trump hasn’t probably already done that?
And you’d have to believe Trump learned and retained anything valuable about national security while president. Seems a little far fetched.
Well, exactly. He’s not really well known for hanging onto information. Except as it relates to grudges.
The greatest value that information ever had was when Trump first took it: Clear back in 2021, when it was fresh and no one knew Trump had stolen it.
What might the price have been to secure the help of Russia, North Korea, Iran, China and others to interfere in our 2024 election? Something to think about.
But since then, that information will have been rendered valueless. Probably not worth even the price of ramen inside the Big House.
I’m pretty sure that under the terms of his sentencing (which as I’ve said upthread, I think will be a suspended sentence with conditions), Trump will not be able to associate with known criminals like Manafort.
Trump will not be able to associate with:
Peter Navarro
Kenneth Chesebro
Jenna Ellis
Sidney Powell
Steve Bannon,
Michael Cohen
Rick Gates
George Papadopoulos
Roger Stone
Allen Weisselberg
Michael Flynn
George Nader
Elliott Broidy
And the list goes . Probably soon to add Rudy Giuliani
Was Manafort convicted of something other than what Trump pardoned him for? If not, he’s no longer a convicted felon, thanks to Trump’s pardon.
If not, then perhaps the judge could add him specifically to the list of people Trump can’t associate with. Probably add Putin to the list too.
Isn’t a pardon an expression of presidential forgiveness—i.e., you’re still a convicted criminal, just one forgiven for his transgression?
I have no idea. 
That’s why I asked. Doesn’t really matter, though. Trump would just talk to someone else who would talk to Manafort. Trump just tried to rehire Manafort to be his campaign manager. Manafort backed away because of all the heat that was brought to bear over it. But he’s still an “informal advisor” to the campaign.
Great link. I’ll note that Eisen is the main guy making the media rounds arguing for imprisonment and saying that incarceration, “Is a very real possibility”, which falls short of a confident prediction. Gertner, the other expert on sentencing, made some interesting points: Trump can’t show too much remorse, because he plans to appeal the case. So that shouldn’t count very much. Prosecutors are public officials and fair game for attacks (me: really?). But jurors are another matter:
But not expressing remorse for the crime is one thing. Attacking the jury is another… 12 neutral citizens who spent six weeks of their lives listening to the evidence, against a standard of proof beyond a reasonable doubt, in an adversary system in which Mr. Trump had virtually unlimited resources to hire lawyers. There is no question that his attacks reflect a fundamental lack of respect for the rule of law, which points to imprisonment.
Gertner’s last paragraph is a doozy: it shifts from the normative to the positive: it pivots to prediction.
The factors pointing to imprisonment are outweighed by Mr. Trump’s unique position. Justice Merchan pulled his punches in imposing fines, not detention, for Mr. Trump’s repeated violations of his court orders. Anyone else would have been jailed. Mr. Trump no doubt will be treated differently — that is, less harshly — than other criminal defendants in our extraordinarily punitive criminal legal system. … Mr. Trump is different, because he was president and could become president again.
I agree with the prediction: specifically I think the fact that Trump is a Presidential candidate will be an implicit mitigating factor when sentencing is decided. I lack the expertise to forecast probation or incarceration and relied on expert opinion for that upthread.
I think the normative subtext of the judge’s piece was clear though: throw the book at him.
So it’s likely to be probation with conditions. Or maybe a suspended sentence. How does that play out?
Trump will test lines: he always does. Much has been written about Trump’s lack of self-control. But that’s overblown. Trump is happy to stay clear of hard lines provided there are soft lines that he can violate. What I suspect the judge can’t do is make Trump positively affirm the rule of law, the kind of intoning done routinely by politicians and high profile criminal defendants.
Because that would break the contract that Trump has with his supporters. Trump’s bargain with them is that they will turn their heads at all of his transgressions provided that he never ever tell them to eat their vegetables. Trump has cunning instincts for what his crowd wants to hear and what they don’t. Conservatives are sensitive to being lectured to, even implicitly lectured to. They dislike restraints and responsibilities, including the ones centered on living in one of the world’s oldest constitutional democracies. It’s grievance and whining all the way down: Trump won’t challenge that. He can’t: it’s all he has.
More details on the sentencing report and interview here:
Couple of points:
- The interview is voluntary. But choosing not to be interviewed will piss off the judge and be treated as a sign of not showing remorse
- It is not prejudicial to say “I’m appealing and still maintain my innocence”. Saying the judge or jury are corrupt or biased (as Trump has) is however.
Trump says he’s OK with prison or house arrest, but…
“I’m OK with it,” Trump told Fox News in an interview that aired Sunday when asked about the potential punishments. “I saw one of my lawyers the other day on television saying, ‘Oh no, you don’t want to do that to the president.’ I said: You don’t beg for anything.”
But, Trump added, “I don’t think the public would stand it. I’m not sure the public would stand for it.”
“I think it would be tough for the public to take, you know, at a certain point, there’s a breaking point,” Trump said.
So he’s planning to pretend he’s a martyr for his own cause. If he goes to prison, would the violence be even worse than on January 6th, 2021?
Would house arrest spur any violence? Confinement to Trump Tower sounds a lot like sending a rich kid to his luxurious room where all his toys are. Would MAGAS revolt or just wear tee shirts that say “Free the Trump Tower One!”?
He also said he’s 239 pound, 6ft 3", perfect physical specimen and a world class golfer mind you:) All those things are more believable to than the fact that Trump is “OK” with prison. He is so so not even slightly ok with prison.