Or will Merchan factor in all the extra stuff — Trump’s courtroom outbursts, his 10 gag violations, his civil judgments for sex assault and billion-dollar fraud, his targeting of the judge’s own daughter — and sentence him to less than a year in Rikers or more than a year in state prison?
Manhattan District Attorney Alvin Bragg has not revealed what he’ll ask for on July 11, when Trump is scheduled to be sentenced to anywhere from zero to 4 years for each of 34 counts of falsifying business records.
Bragg has yet to even tell his own prosecutors, the ones who tried and won the hush-money case, what sentence he’ll ask for, according to a source who spoke on condition of anonymity.
Merchan, of course, won’t tip his hand until the sentencing itself.
From the judges’ mouths
So, Business Insider did the next best thing.
We side-stepped the pundit industrial complex and its army of former prosecutors and think-tankers. We instead asked a few of Merchan’s former colleagues on New York City’s criminal trial bench, the closest thing to the horse’s — or judge’s — mouth.
Will Merchan sentence Donald Trump to jail? To prison? What would they have done as judges had Trump’s case been theirs?
Four former New York City judges, all reputed to be as tough or tougher than Merchan, shared their answers.
All four said a prison sentence — AKA “state time,” meaning a sentence of more than one year in an upstate New York prison — is inappropriate.
Merchan will not sentence Trump to prison, the four agreed.
“He’s certainly not going to give him state time — state time is really a lot,” said Michael Obus, who was Merchan’s supervising judge in Manhattan from 2009 to 2017.
“The prosecution has gotten its pound of flesh just by getting its conviction,” agreed Barry Kamins, a former Brooklyn-based state supreme court justice and ex-administrative judge for the city criminal courts.
“We all know who Trump is and what he does,” said Charles Solomon, a Manhattan-based state supreme court justice for 33 years before his retirement in 2017.
“But you don’t want to give him such a draconian sentence that he becomes a martyr,” Solomon said.
“Trump would be re-elected in a landslide if they put him for one day in jail,” he added. “Plus, this guy doesn’t belong in jail for what he did. Let’s face it, enough is enough already.”
What about Rikers?
Three out of the four former judges who spoke to BI go even further, predicting that Merchan won’t give Trump a jail sentence either, meaning no “city time” — a term of less than one year in New York’s notorious Rikers Island.
Merchan could theoretically sentence Trump to as little as a single day in Rikers, said Kamins, now in private practice at Aidala, Bertuna & Kamins.
A 30-day sentence, to be served at Rikers on 15 consecutive weekends, is a more reasonable low-jail option in Merchan’s toolbox, noted Solomon.
But Trump shouldn’t expect even this sort of short, symbolic jail sentence, said Kamins, Solomon, and a third former Manhattan judge who asked not to be named due to an ongoing connection to the courts.
“This is not a case where jail should even be considered,” said that former judge, one of the few Republicans on the Manhattan bench in recent decades.
In sentencing, both aggravating and mitigating factors are weighed, this judge noted.
“You have to consider the impact that a sentence will have on others,” the former judge said.
“And in this case that means the impact the sentence will have on the entire nation. A national election is hanging in the balance,” where any time spent in jail keeps Trump off the campaign trail, the former judge said.
“If this gets reversed” on appeal, they added, “the damage will already be done, and this judge cannot be oblivious to that.”
Appeals would delay jail for years
Only one judge — Obus, the former Manhattan administrative judge — declined to rule out jail altogether, calling it a possibility, though a slight one.
What might tip the scales in favor of jail? Trump’s motive.
Prosecutors can be expected to argue at sentencing, as they did in opening statements and closing arguments, that Trump falsified business records as part of a 2016 election-interference scheme with the National Enquirer.
The supermarket tabloid ran fake stories attacking Trump’s political opponents — including one doozy that accused Ted Cruz of keeping “five mistresses” — while buying and burying salacious stories that hurt Trump, trial evidence showed.
“This scheme, cooked up by these men at this time, could very well be what got President Trump elected,” prosecutor Joshua Steinglass told jurors in closing arguments.
Merchan will weigh this attempt to influence the 2016 presidential election during sentencing, Obus noted.
“One possibility is some kind of split sentence, say, six months of jail with a concurrent sentence of five years probation,” said Obus, a member of the new statewide commission on prosecutorial conduct.
But even in the unlikely event of a low-jail sentence, Trump’s appeals would keep him at liberty for years, all four judges said.
“I’ve kept a client out as long as six years, pursuing appeals,” said veteran Manhattan defense lawyer Ron Kuby.
“No one is going to incarcerate a former president of the United States until his appeals are exhausted,” said Kuby.
“You cannot plausibly argue that Donald Trump is a risk of flight,” Kuby added. “Now, you may wish that he flee,” he joked. “But he is not a flight risk.”
Merchan has the power to immediately stay any incarceratory sentence himself, Obus noted.
Probation, community service, and a fine are far more likely
Short of jail, Trump can be fined up to $5,000 for each of the 34 records-falsification counts he was found guilty of, Obus said.
Merchan can also order community service, to be monitored by the judge himself or through the city probation department.
“If you’re older or handicapped, they won’t send you out into the parks to pick up garbage,” Solomon said. “They’ll have you licking envelopes somewhere,” he said.
“Maybe in Trump’s case, they’ll have him lecture somewhere about how you should not commit crimes,” he added. “He could go to Harvard Business School and lecture about the importance of not falsifying business records.”
A term of three or five years probation would not be surprising, the former judges said.
“It’s basically nothing,” Solomon said. “You have to meet with your probation officer initially, and then you have to go to a kiosk every now and then, and log in, to make sure you’re OK and still around.”
Trump can easily have his probation transferred to Florida — or Washington, DC. — the judges also noted.
“If you go by the statistics for people sentenced for this kind of crime, the most common sentence is probation,” said Kamins.
“Judge Merchan, we know, takes white-collar crime very seriously, and he may choose probation — which is the most serious non-jail punishment — only because of his feelings on white-collar crime,” Kamins added.
Merchan should say less, not more
It’s a historic moment, the first sentencing of a former president. But given what will be an aggressively-fought appeal, Merchan may want to keep his comments brief, and focused on the conviction alone, the former judges said.
Merchan has already punished Trump’s ten acts of contempt of court — his gag order violations — by imposing a total $10,000 in fines. Dwelling on these violations as he explains his sentence to Trump could give the defense a basis for challenging the punishment as vindictive and repetitive, the former judges said.
But Trump’s history of civil fraud and sex-abuse judgments is fair game for Merchan to mention at sentencing, they said.
Rehashing Trump’s spoken and online attacks on the judge, the judge’s family, and the criminal justice system is also fair game.
“He looks like an angel, but he’s really a devil,” Trump said of Merchan during a press conference just one day after his verdict.
But less is more, the former judges said, especially if Merchan wants to limit Trump’s ability to appeal the sentence by claiming it was based on the judge’s personal and political animus.
“You can go down the list, as a judge, and say he doesn’t pay the people he hires, he doesn’t do this, he doesn’t do that,” Solomon said of Merchan’s sentencing statement.
“But if you start making a list of how bad he is, and then you give him a light sentence, you look like an idiot,” he said.
“Most of the time, the less you say the better,” Solomon added. “You speak a couple of sentences. You say, ‘I have weighed the facts of the case, and I think the appropriate sentence under the law is as follows.'”
Ultimately, the judges said, Merchan will give it a good deal of thought, and then do what he sees is best.
“I certainly don’t know what the right decision is, or what Judge Merchan will do,” Obus told BI.
“I just know that he is thoughtful, and wise, and fair. And I’m sure he’ll consider the appropriate factors and whatever he does will be the right decision,” he said.
“That’s how I’m going to find out what the right decision is,” he added with a laugh.
