Will Trump go to prison for felony hush money conviction? Experts are split

(NEW YORK) — After becoming the first former president to face criminal charges, Donald Trump faces another historic first next month: He could become the first former president in U.S. history to be ordered to prison when he’s sentenced in his New York hush money case.

Several experts told ABC News that the odds are against the former president serving any time behind bars before the 2024 election, after a jury in May found him guilty on 34 felony counts of falsifying business records related to an effort to illegally influence the 2016 presidential election.

But it’s possible that the nature and circumstances of Trump’s alleged criminal conduct — in addition to his lack of remorse and behavior during the trial — could provide Judge Juan Merchan justification to impose a sentence that includes prison time, some experts told ABC News.

Of the 14 lawyers and law professors who spoke with ABC News, five believed a prison sentence was likely, two described the decision as a toss-up, and seven believed a prison sentence was unlikely due to a combination of the logistical challenges, a lack of precedent supporting incarceration for first-time offenders, and the political implications of such a sentence.

Regardless of the punishment, experts broadly agreed that Trump’s sentence will most likely be stayed pending his appeal — a process that could take anywhere from months to a year — meaning the former president would likely avoid serving any part of a sentence until after the 2024 election.

Ahead of the July 11 sentencing, Judge Juan Merchan faces the unprecedented question of how to punish the former president for crimes that prosecutors framed in the sharpest terms — a “subversion of democracy” and “election fraud, pure and simple” — but that were charged using the least severe class of felonies in New York.

“There is no more serious falsification of business records case that I can remember in the history of supervising and prosecuting many of these cases,” said Karen Friedman Agnifilo, who previously served as the chief assistant district attorney in the Manhattan district attorney’s office.

Compared to judges in federal court — whose sentences are normally guided by a point system created by the United States Sentencing Commission — Merchan has fewer reference points when sentencing Trump. New York’s penal law limits prison sentences for Class-E felonies to four years, and probation officials will prepare a report with a recommendation for Trump’s sentence, which Merchan can consider when weighing the nature and circumstances of the crime along with Trump’s history and character.

“On behalf of New Yorkers — that’s who Judge Merchan is speaking up for — how big a breach of the social trust was this compared to all the other crimes that he and other judges sentence every day?” said Justin Levitt, a constitutional law professor at Loyola Law School. “There is literally no case that has been remotely similar to the criminal prosecution conviction of a former chief executive of the country.”

Here are six questions that will likely shape how the judge forms his decision:

How have similar defendants been sentenced?

While the Manhattan district attorney frequently charges defendants with falsifying business records — there were 437 such charges by the office in the decade before Trump’s indictment, according to a court filing last year — Merchan might struggle to find relevant precedent in those cases, experts said.

Manhattan DA Alvin Bragg brought his case using a novel legal theory that Trump falsified business records to conceal a violation of a New York election law that prohibits conspiracies to influence an election using unlawful means.

“This isn’t a run-of-the-mill falsifying business records case,” former Manhattan assistant district attorney Jeremy Saland told ABC News.

While first-time offenders convicted of falsifying business records normally avoid prison time, similar cases related to campaign contributions or public officials suggest incarceration is a possibility.

Richard Brega, a New York bus mogul who pleaded guilty to one count of falsifying business records related to illegal campaign contributions, received a one-year prison sentence in 2018. Former New York Comptroller Alan Hevesi, who pleaded guilty to receiving a reward for official misconduct — a class-E felony — related to a pay-to-play scheme involving New York’s pension fund, was sentenced in 2011 to one-to-four years in prison.

“Ultimately, this is a case that stands alone, and that is going to be extremely difficult for the judge to come up with a sentence that is fair and appropriate,” said Robert Mintz, a former federal prosecutor.

What factors could lessen Trump’s sentence?

Trump’s status as a first-time offender, the nonviolent nature of his crime, his advanced age, and a lack of a flight risk are mitigating factors that could lighten his sentence, according to Pace University School of Law professor Bennett L. Gershman.

However, Gershman cautioned that while Trump might be 78 years old at the time of his sentencing, many white-collar defendants receive prison time in spite of their advanced age.

“I would be shocked if he didn’t impose some time in jail,” Gershman said. “Merchan imposes tough sentences. He’s a tough judge from his history on the bench.”

Has Trump shown remorse?

Trump’s lack of remorse or admission of wrongdoing could work against the former president at sentencing, where Merchan can consider Trump’s overall history and character. Trump has also frequently targeted Merchan with personal attacks related to his daughter’s political work and compared the judge to a “tyrant” and “devil.”

Merchan also held Trump in criminal contempt ten times during the trial for knowingly making comments about witnesses and jurors in violation of the case’s limited gag order.

“I think that most judges would feel that some kind of jail time is needed to basically affirm the need for a defendant to have respect for the court,” said George Washington University professor Stephen Saltzburg.

Would a prison sentence be a deterrent?

In addition to any purported rehabilitative or retributive purpose, prison sentences are often used by judges to deter the defendant or the broader public from committing similar crimes in the future.

Some experts ABC News spoke with were skeptical that Merchan could justify a prison sentence based on individual deterrence — i.e., discouraging Trump himself from committing a similar crime again.

“It’s not necessarily clear to me that this is a situation that will arise again that could be specifically deterred,” said former federal prosecutor Jarrod Schaeffer. “Looking at Trump’s behavior and his track record, I’m not sure that the judge will hold out hope that his sentence in this case will have a strong deterrent effect on him.”

Yet the sentencing could provide an opportunity for general deterrence for the public, including other public officials, according to Jeffrey Cohen, a Boston College Law Associate professor.

“When you have a high-profile defendant, you want your punishment to discourage other people from doing this sort of thing,” Cohen noted.

What other options does Merchan have for Trump’s sentence?

Merchan could opt to sentence Trump to a period of probation or a conditional discharge.

If sentenced to probation, Trump would have to report to a probation officer and meet certain conditions, including potential travel restrictions or curfews that could be enforced with the use of an ankle monitor, according to former federal prosecutor Michael Zweiback. However, enforcing the terms of Trump’s probation in the middle of his presidential campaign could be challenging, according to New York Law School professor Anna Cominsky.

“The more restrictions on someone’s movement sometimes makes it more difficult for them to live their lives and do their jobs,” Cominsky said. “So when it comes to Trump, part of his job is right now campaigning and traveling around the country. He has to be able to do that.”

Trump alternatively could be sentenced to a conditional discharge where Judge Merchan himself would oversee that Trump meets the conditions of his release, rather than a probation officer.

The conditions of Trump’s release could include paying a fine, performing community service, and avoiding future arrests.

“He could be creative here, and I think that’s sort of the wildcard, is that the judge does have a lot of discretion in fashioning a sentence,” said former federal prosecutor Joshua Naftalis.

How would the sentence impact the election — and does it matter?

Trump’s sentencing comes just four days before the Republican National Convention, and the former president faces the possibility of serving part of his sentence while running for the presidency.

The political undercurrent adds another layer of complexity to the already thorny sentencing, as the former president continues to allege without evidence that the prosecution against him was politically motivated.

While Merchan could opt to disregard the political implications of the sentencing entirely, the broader ramifications of the sentence could play into Merchan’s decision about the most effective punishment for the former president.

“There are political issues around sentencing him to a term of incarceration just before the convention, and that’s feeding into a narrative that this prosecution was really to keep him from campaigning and keep him from regaining the office of president,” said Bader.

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