Now that Donald Trump has been convicted of 34 felony counts, his sentencing hearing is looming on July 11. Below are two legal experts weighing in on the key question of whether Trump should receive any prison time.
Why Trump should be jailed
By Norman Eisen
Having followed daily the criminal trial of Donald Trump for falsifying business records to cover up a sex scandal that threatened his presidential campaign, I strongly believe the former president should be sentenced to prison.
I am an attorney, not a judge, but I have practiced criminal law for over 30 years. Under New York law, sentencing should be based on the seriousness of the crime, and the 34 crimes for which Trump was convicted are extremely serious. To convict him of falsifying business records, a felony, a jury would have had to find that Trump made a false statement or induced a forgery with the intent to commit, aid, or conceal a second crime.
Jurors were given just one option for the second charge: paying hush money to conceal damaging information, a “criminal scheme to rig the 2016 presidential election,” as defined by New York state criminal law. One of the prosecutors, Joshua Steinglass, emphasized its importance in his closing argument, telling the jury that “a democracy gives people the right to choose their leaders, but it is premised on voters having access to accurate information about their candidates.” Trump “denied them access to that information, and manipulated and deceived voters, and systematically sought to mislead them,” Steinglass said.
This crime deserves punishment because the legitimacy of our entire system of government is based on free and fair elections.
Sentencing should take into account the results of similar cases. When Judge Juan Marchan sentences Trump, he will do so against the backdrop of many other defendants who have been convicted of this felony. My research for my book on this case, “Trump Tried: A Guide to the First Criminal Trials of Election Interference,” includes a review of about 10,000 prosecutions for falsifying business records in New York since 2015. The most serious of these cases, about 10% of the total, resulted in prison sentences. Trump’s attack on our democracy is as serious, if not more so, than any of these other cases. My research also makes it clear that first-time offenders like Trump will not be spared prison time, and that they should not be spared if their crimes are serious enough, as the former president was.
Moreover, Trump has shown no remorse whatsoever. On the contrary, he has been extremely defiant. He has walked out of the courtroom almost daily to face reporters gathered in the courtroom, spewing false information about the case and slandering the judge, Manhattan District Attorney Alvin Bragg, and others in the most outrageous and inflammatory terms. He has ignored ten times the judge’s gag orders to protect witnesses and jurors. Under New York law, all of this could and should work in favor of a prison sentence for Trump.
The court may also take into account any convictions already awarded against the defendant for defamation, sexual assault or civil fraud, on the basis that a defendant’s history and character influence sentences, and this sordid history suggests that a prison sentence is warranted.
Finally, sentencing is not just about accountability but also about deterrence. A prison sentence would send a message to Trump and his supporters that they will not get away with conspiring to interfere in elections. Given that Trump faces charges related to the attempted 2020 election interference (which he still claims to have won) and that he is seeking reelection, a criminal sentence and the deterrent it would provide are crucial, both for justice and as a wake-up call to the American people.
Norman Eisen served as special counsel to the House Judiciary Committee during the first impeachment and trial of President Donald Trump.
Why I’m against prison time for President Trump
Nancy Gartner
Donald Trump was convicted of 34 felony counts of falsifying business records with the intent to illegally influence the 2016 election. Although the law under which he was convicted allows for prison time, I am not going to send him to prison.
I do not have access to the information Judge Juan Marchan will have at sentencing — the pre-sentence reports prepared by his probation officer about Trump or the arguments made by the prosecution and defense. My conclusions are based on the public record, my years of experience as a federal judge and criminal defense lawyer, and decades of experience teaching sentencing courses at Yale and Harvard Law Schools.
Under New York law, falsifying business records in the first degree is a Class E felony, meaning the penalties for each offense range from probation to up to four years in state prison, a fine, or a period of supervised probation in which the charges may be dropped as long as Trump fully complies with the terms of his probation. New York judges have the discretion to choose penalties within the statutory limits.
One starting point in examining the sentence is to look at the treatment received by other defendants convicted of the same or similar crimes. Defendants convicted of this crime can face prison time, but most do not, especially first-time offenders like Trump. To be sure, this case is unique. It was about more than tampering: it was about attempting to interfere with an election.
Some have pointed out that Trump has shown no remorse since the verdict. Those on appeal (which they will appeal after the verdict) cannot plead guilty to the charges, which would mean they would not be able to defend themselves in a retrial if their conviction were overturned.
But it’s one thing to express no remorse for a crime, and another to attack a jury. Prosecutors like Manhattan District Attorney Alvin Bragg are elected officials with discretion in prosecuting. They are legitimate targets for defendants. And yet, in an adversarial system in which Trump has virtually unlimited funds to hire lawyers, his decisions were tested by a jury of 12 neutral citizens who heard evidence over six weeks against a standard of proof beyond a reasonable doubt. There’s no doubt that his attacks reflect a fundamental lack of respect for the rule of law, which means prison.
I also want to consider Judge Marchan’s contempt of court ruling: Trump has willfully ignored the rules of the court, a behavior that strongly suggests he will not follow other laws.
As for the other criminal charges pending in the District of Columbia and Georgia related to the January 6 riots, and the Florida charge of unlawful retention of classified information, I will not rely on them. Federal law, like New York law, allows but does not require judges to consider charges that have not been decided by a jury. I have chosen not to consider the charges pending during my term as a judge because I believe it would be unfair. Judge Arthur F. Engoron’s civil judgment in February alleging that Mr. Trump engaged in repeated and persistent business fraud reflects conduct similar to that for which Mr. Trump was convicted in this criminal case, but it is a civil matter closer to home because it involved a lower standard of proof.
But the bottom line is that Trump’s unique position is more important than the factors that lead to incarceration. Judge Marchan went easy on Trump by giving him a fine rather than jail time for his repeated violations of court orders. Anyone else would have been incarcerated. Trump will no doubt be treated differently and more gently than other criminal defendants in our highly punitive criminal justice system. But we should not equalize defendants by making everyone more severely punished. Our criminal justice system is too retributive and too biased toward incarceration, whatever the crime. And Trump is unique in that he has been and could be president.
Nancy Gartner is a retired U.S. District Court Judge and Senior Lecturer in Law at Harvard Law School.
