Trump’s charge of falsifying business records is considered a Class E felony, the least serious of the three, which carries a maximum prison sentence of four years. (The sentences for each charge run concurrently, so the maximum is four years, not 136.) Some convictions for these types of crimes result in prison, but not most. In “Trump Trials: A Guide to the First-Ever Criminal Trials,” Norm Eisen looked at about 10,000 prosecutions for falsifying business records in New York since 2015 and found that about 10 percent resulted in prison time. Because it’s a first-time offense, Trump won’t face prison time, but… Exempt If you want to spare him prison time, you would usually be better off with a lighter sentence, such as probation only or a minimum prison sentence, but is this the norm?
While the charge of fraudulent record-keeping is routinely elevated to a felony (contrary to ignorant critics who saw it as a quixotic ploy), Judge Juan Marchand has already found Trump’s crime to be particularly serious, the most serious of which was concealing potentially decisive information from voters in the 2016 election. (Even Trump’s cronies recognized the gravity of their scheme: “What have we done?” his lawyer Keith Davidson texted an editor at the National Enquirer.) After the election.
“While the charges are the least serious and no one was physically harmed, that is far from making the allegations less serious,” Marchand wrote in his pretrial ruling. “The prosecutors allege that the defendants paid $130,000 to individuals to conceal sexual relations for the purpose of influencing the 2016 presidential election, and then falsified 34 business records to hide those payments. In this Court’s view, these are serious allegations.” The conviction is serious.
In addition to the seriousness of the crime, the factor most favoring a severe sentence is Trump’s conduct and character, not “merely” because he has multiple civil convictions (for sexual abuse, for example). Defamed E. Jean Carroll, inflated the value of his estate, and misused charitable funds or He led a violent insurrection to overturn the election. or His conduct has led to him being held in contempt multiple times in the courts of Judges Marchan and Arthur Engoron. In this case, character and conduct includes how Trump handles the criminal justice system.
From that perspective, imprisonment may be the only effective punishment. This is due to Trump’s flawed character. The small fine he received for contempt of court has not slowed him down. As long as he remains a fugitive and has unfettered access to social media, he remains a threat to those he attacks and to the justice system he denigrates. Imprisonment is the only way to hold Trump accountable for his all-out assault on the rule of law that continues to this day.
Marchan should take into account the threats and slander that Trump has hurled at witnesses, jurors, and judges (including family members). He should also take into account the racist attacks and implicit threats of violence directed at Manhattan District Attorney Alvin Bragg. The felon before him has attempted to intimidate witnesses and denigrate New York’s courts as corrupt. Trump has done far more damage to the people of New York (and the country) than he has done by continuing to incite the mob (threatening the safety of anonymous jurors) and denigrating the courts as “rigged.” No criminal conduct should be accused of this. The potential for New Yorkers to be reluctant to serve on a jury in light of the stark accusations leveled against these 12 people could be one of the most lasting damages President Trump has inflicted on our justice system.
Taking a step back, Trump’s tactics are familiar to those who study fascism. “Fascism promotes contempt for democratic institutions, especially elections and the rule of law,” the Public Leadership Institute explained in a 2022 study summarizing several studies. “Instead, it demands that majority groups cede power to a dictator and his minions, while glorifying the use of violence to support fascist myths and goals.”
Historical and contemporary examples show that illiberal movements prioritize control of the judiciary because only by doing so can they strengthen their authoritarian electoral model. Once the independence of the courts is eroded and leaders and their cults accept only results favorable to their cause as “fair,” they can begin to destroy other democratic institutions. (The Supreme Court’s apparent efforts to block Trump’s January 6 trial before the election show that MAGA efforts to control the judiciary are well underway.)
With other criminal cases against Trump postponed, for the time being, Marchan alone bears the responsibility to impose a punishment that is commensurate with Trump’s crimes and sufficient to protect our justice system. Voters must ultimately reject fascism at the polls, but for now, Marchan must exercise his discretion to sentence Trump to at least one year in prison to protect this felon and the independent justice system (judges, juries, witnesses) that his words and actions threaten. Failure to do so puts the people of New York and our Constitution at risk.
