There was a fair amount of writing in advance of the trial to the effect that the felony enhancement applies even if the underlying crime was not carried out to completion. If the falsification of records was performed with the intent to further the associated crime, that’s sufficient. That crime can remain incomplete or abandoned at the end of the day, and the felony enhancement still sticks.
Agreed.
There was at least one case in New York where the defendant was acquitted of the underlying crime, but the falsification of business records was upheld on appeal.
Excellent clarification. Thanks.
IANAL either. For me the best reason to send him to jail is his utter lack of public remorse and its associated open contempt for the law. I don’t mind the powerful getting off: that can happen when the rich are rich, the powerful are powerful, and the bar for conviction is beyond a reasonable doubt.
Society needs to protect itself from those who operate with impunity. To me, Trump’s absence of public remorse is most compelling aggravating factor.
Does the presentencing investigator get to take into account and report Donald’s public utterings post-conviction?
Re question in the last post, I wish I knew.
But I can answer a related question. The pre-sentencing report is secret. The defense and prosecution can get it, but not the public. In theory, Trump can tell the probation officer interviewer that he is remorseful, and will be careful not to do anything like his misdeeds again, but has to act otherwise, on the campaign trail, due to the requirements of his job as a politician. Whether the court would buy this, I have no idea, but, to me, it sounds like it would be Trump’s best chance.
Rocksheng Zhong, writing in the NYU Review of Law and Social Change, interviewed 23 judges about the role of remorse in the legal system. Her methodology wasn’t statistical: it was intended to uncover the range of perceptions. Emphasis added:
Sentencing, many judges agreed, “is the big kahuna,”154 “the time when remorse comes into play,”155 and “the best and most evident opportunity for someone to make a statement of remorse.”156 Judges differed in the reported frequency with which they encountered remorse at sentencing.157 When explaining the manner in which they decided on a sentence, many judges noted that they referred to the pre-sentence investigation report for additional information regarding the defendant’s remorse or lack thereof: “I give a lot of credence to observations [of remorse] made by probation . . . .”158 Other judges used the reports as launching points for their own assessments: “The probation officer says, ‘I think this is genuine remorse,’ I might want to try to find out more myself, probe the person, try to talk to him, engage him on the record.”159 Still others recognized the limitations of a probation interview—“they are only meeting this person for an hour”160—and that the usefulness of an officer’s observations depended on “the nature and quality of the contact that that officer has with that individual.”161 These judges preferred either to “figure for myself”162 or to use the report as a way to “reaffirm my impression.”163 Lastly, one judge specified that expressions of remorse are less meaningful when not given in open court: “It is one thing to sit across from a probation officer who is preparing a pre-sentence investigation report and say you are sorry. Can you do it in open court when you have to and when the words mean the most?”164
As for what the pre-sentencing report can contain, refer to Article 390.30 of New York State. Emphasis added:
S 390.30 Scope of pre-sentence investigation and report. > 1. The investigation. The pre-sentence investigation consists of the gathering of information with respect to the circumstances attending the commission of the offense, the defendant’s history of delinquency or criminality, and the defendant’s social history, employment history, family situation, economic status, education, and personal habits. Such investigation may also include any other matter which the agency conducting the investigation deems relevant to the question of sentence, and must include any matter the court directs to be included.
Also:
S 390.40 Defendant’s or prosecutor’s pre-sentence memorandum. > 1. Either the defendant or prosecutor may, at any time prior to the pronouncement of sentence, file with the court a written memorandum setting forth any information he may deem pertinent to the question of sentence. Such memorandum may include information with respect to any of the matters described in section 390.30. The defendant may annex written statements by others in support of facts alleged in the memorandum.
I would think that the prosecutor would have flexibility in including public statements given the 2 sections.
So it definitely seems like Trump’s outbursts in the media can be included. I wonder if we’ll see a sudden change of heart by Trump, as with the gag order violations. When his lawyers finally convince him of this.
So who’s doing the direction? Would that be Merchan, saying “hey, maybe check out his Truth Social history?”
I don’t think so. Trump was able to adhere to the gag order while simultaneously whining about how unfair it was. It was understood by MAGA that Trump’s 1st Amendment rights were being violated and he had no choice but to remain silent or find himself incarcerated. With his guilty verdict, Trump can’t concede that he did anything wrong or show concessions of any sort because it’s off brand for him. i.e. He can’t tell his followers everything is unfair while simultaneously telling the court he’s, “Really really sorry.”
Except Trump really really cares about not going to prison. If his lawyers convince him it might make a difference I can see him suddenly changing his tune.
Of course his comments will already be out there, part of the public record so how much difference it will make is arguable.
As he’s done many times, Trump has painted himself into a corner with his own words which will prevent him from effectively presenting to the court that he’s remorseful. Though to be honest with you, I don’t know how many Trump supporters would actually care. They didn’t care when he violently attempted to keep power so why would they care about him telling the court he did it? I suppose it might make him look weak, but how many would abandon him? Not many I’d wager.
What would happen if during the pre-sentencing interview, the interviewer was to find concerns about his mental fitness?
If he’s not going to jail, I’d like the judge to say something like this: “Mr. Trump, I’m not going to incarcerate you. Frankly, you’re too old, feeble, stupid, and unaware of what you did for punishment to be effective.”
My response to the last post:
All the documents that came in and out of prison would be reviewed. While I cannot be sure prison would prevent him signing checks as part of a conspiracy to disobey election laws, I think it would make it far less likely.
My prediction is some term of house arrest, followed by period of supervised release including months of electronic monitoring, and the rest suspended.
The big issue- is what will happen if (and the if is near certainly) trump violates the terms of the suspended sentence.
He would include them in his report, and the judge would probably order a competency evaluation.
I’m truly wondering what is going through Merchan’s mind right now. On one hand, this is a case that clearly deserves some incarceration. This was a felony with 34 counts that went all the way to trial; the defendant is unrepentant; a co-conspirator got locked up; the underlying crime was very serious.
On the other hand, it’s a sentence that will be handed down mere days before the Republican National Convention, and will have an indelible impact on the election, in some fashion.
Ultimately, our system is supposed to be fair and impartial. Justice is blind.
The judge has a job to do. I hope he does it.
Merchan has impressed me as remarkably fair-minded throughout the trial. I also hope he ignores the hoopla and does whatever he would for a defendant not named Trump in the same situation.
That said, I can definitely see how a short prison sentence could actually help Trump (politically). I do think a prison sentence could definitely LOOK LIKE election interference to a lot of people (who haven’t been paying attention, which is most of everyone), and not just MAGA nuts. It feeds right into the narratives he’s been prepping all along and I think many people would buy it. (“They put him in jail for a bookkeeping error!!”)
Let’s say Merchan sentences him to 90 days, plus 2 years probation (I just pulled that out of nowhere). I can easily see the Trump campaign saying “See how much they don’t want you to vote for him?? But don’t worry, he’ll be out right after election day, with plenty of time to take office. Don’t let the system take away your choice” and related BS. And it could really work. Depressingly.
Fuck it, I say.
Let’s really have a referendum on how deplorable a country we want to be?
Put him in prison for a year and let the voters decide if that’s what they really want.
I think a one-year (or longer) sentence would be extremely damaging to Trump in all ways, assuming he’s not allowed to be out on appeal, so I’m with you - lock him up! I just think a short sentence like in my example could be a net positive for him.
But I’m willing to admit that I could be wrong about the short sentence. Maybe the sight of Trump in an orange jumpsuit, even for just a couple of months, could be the thing that breaks the spell for enough folks to make a difference. Who the hell knows what the voters in this country will do? We are truly a nation of idiots.
All that said, I still predict he will not spend a day behind bars for this particular conviction.
I must confess, my dreams are highly similar to yours.