The Legal Case for Sentencing Trump to Prison

Sometimes the law is complex and esoteric; other times it’s incredibly intuitive. The principles that govern sentencing are the latter. They are a distillation of commonly shared values in personal morality and public policy. As a former prosecutor and current defense attorney who has argued hundreds of sentencings, I have no reservations in saying that these principles demand a prison sentence for Donald Trump’s recent conviction.

The most important factor in many sentencings is the nature of the offense. But the focus on conduct is different than at trial. Trial is only about whether you are guilty or not. But in sentencing there are degrees of culpability, and you look to how bad the conduct was. For instance, you can rob a bank with a toy gun or by executing hostages until the bank hands over the money. You’re guilty of bank robbery either way, but the latter is going to result in a harsher sentence — even if you’re only charged with robbery, not the shootings.

Fair elections is an essential democratic value, and the conduct that gave rise to Trump’s conviction undermined the fairness of the 2016 election. We can argue about the nuances of what fairness means, but at a minimum, it must preclude committing crimes to gain an advantage. Had Trump falsified business records to get a small loan that would be one thing. That’s bad, but it’s a private commercial matter with limited reach. In contrast, falsifying business records related to an election for the highest office in the land harms every American in a way that cuts to the core of our national identity. It even harms those who voted for Trump, though many may not recognize it. Fair elections are essential to the legitimacy of our democracy, which all Americans have a stake in, no matter whom they vote for.

Another key factor in sentencing is deterrence. It takes two forms. The first is “specific deterrence,” which is the need to deter the defendant from committing more crimes. Here, defense attorneys often point to their client’s remorsefulness to argue against imprisonment. He’s a changed man, look how sorry he is, the argument goes. But Trump is not just unremorseful, he viciously attacks the justice system for holding him accountable. Moreover, some of these attacks occurred in violation of a court-imposed gag order. The violations show both contempt for the court and that less restrictive encumbrances on his liberty, like probation, are insufficient to restrain him. Someone with no respect for the law will only stop violating it if their ability to do so is taken away from them. Prison dramatically limits that ability.

Defendants also commonly emphasize how much a conviction has already cost them to argue that prison is unnecessary to change their ways. They may point to a lost job, divorce, or social isolation. But what has Trump lost? Far from being fired or becoming a social pariah, he’s locked up the Republican nomination for president while this case was ongoing. The argument that he has already been punished enough just can’t be credibly made.

The second type of deterrence is “general deterrence,” or the need to persuade other would-be criminals not to commit crimes like Trump has. Here, a prison sentence would be a powerful reminder to others, especially the powerful, that crimes have consequences. If a former president can be sent to prison, so can anyone else who breaks the law. Conversely, not sending Trump to prison sends the opposite message — that his crimes really aren’t a big deal. Everyone will be watching what happens to Trump at sentencing. To deter others, the court should send the clear message that crimes like his won’t be tolerated.

Another goal of sentencing is to account for the history of the individual. Defendants are more than the crimes they commit, and when they get a lenient sentence, this factor is often at play. But this is at best a mixed bag for Trump. While he has not previously been convicted of a crime, in civil cases he’s been found guilty of a fraud scheme in excess of $450 million, personally misusing funds from his charity, sexually abusing and defaming E. Jean Carroll, and then cavalierly defaming her again after the first judgment against him.

Moreover, as a rich, powerful, and educated person, Trump’s crimes were not born out of necessity or the result of not being given a fair chance in life. There is no excuse for his conduct with such a privileged background.

A final sentencing principle is the desire to avoid unwarranted sentencing disparities. Here, many have noted that the crime Trump was convicted of is the lowest grade felony in New York, one that typically does not result in a prison sentence for those without a prior conviction. That’s true, but not especially relevant. Avoiding unwarranted disparities is about treating similarly situated defendants similarly. But the way Trump violated this law is unique. As noted, it undermined the fairness of the presidential election that he was running in. Literally no American defendant in history has that as the backdrop of their crime. Because his conduct was atypical, an atypical punishment is warranted.

Furthermore, remember that Michael Cohen went to prison for participating in Trump’s hush-money scheme, a crime that Cohen accepted responsibility for in his guilty plea. Trump was the leader of that conspiracy, and Cohen was his subordinate. Not sentencing Trump to prison would create an unfair disparity with someone who is less culpable and who at least pays lip service to remorse.

Most commentators would probably say that Trump is unlikely to serve a prison sentence. They emphasize his lack of any prior convictions in making this argument, but they often neglect the factors I’ve outlined above. Others think that the court should hesitate to imprison Trump for fear of looking political. That concern is not a legal one; it’s cowardice. The law doesn’t change to accommodate feelings, much less misguided ones.

Justice requires the courageous thing: incarcerating Trump. It will no-doubt infuriate millions, and will probably lead to even more threats against the Judge Juan Merchan, District Attorney Alvin Bragg, and their staff and families. These public figures have shown so much fortitude in their service to the law so far. Let us hope they continue to do so at sentencing on July 11.

Gregory Nolan is a former federal and state prosecutor and currently practices white collar criminal defense at Brown White & Osborn.

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