Trump Rolled The Dice Taking His Hush Money Case To Trial And Lost. Now He Might Lose Again.
A long-standing, unwritten rule that evolved to avoid clogging up the criminal justice system could now work to sentence newly convicted felon Donald Trump to prison when he appears before a New York City judge next month.
The former president, legal experts say, has put himself on the wrong side of a process that rewards those who do not force the state to expend the time and money for a jury trial — and punishes those who do. Any normal defendant who pleaded not guilty and then lost their trial, these experts note, would likely see the harsher end of the sentencing range.
“If you spare the government the expenditure of resources and accept responsibility and plead guilty early in the process, you get some credit for that,” said Rebecca Roiphe, a former state prosecutor in Manhattan and now a professor at New York University School of Law. “Trump obviously didn’t do that.”
Trump also spent the entirety of the trial, from jury selection through his verdict and beyond, personally attacking the judge, the district attorney, the witnesses against him and the legitimacy of the entire nation’s justice system — something the vast majority of criminal defendants avoid doing.
“I can assure you, if his name was not Donald John Trump, this is exactly the person and the case where a judge would give a stiff prison sentence,” said Karen Agnifilo, also a former Manhattan prosecutor who is now a defense lawyer.
Neither Trump’s lawyers nor his campaign staff replied to HuffPost queries about his July 11 sentencing.
Everyone accused of a crime in America has a right to a trial by jury. But jury trials are labor-intensive and time-consuming for prosecutors, public defenders, judges and court staff. Further, the volume of criminal cases in most jurisdictions means it would be physically impossible to take every case to trial without a manyfold increase in the number of taxpayer-funded lawyers, judges and courtrooms.
Over the decades, the workaround that has been almost universally adopted results in the vast majority of prosecutions being resolved with plea agreements – or “bargains” ― that allow the accused to admit to the charged crime or a lesser crime in exchange for a reduced jail term or, depending on the severity of the offense, even just probation.
But for those who insist on taking a case to trial and end up getting convicted by a jury, particularly when the facts underlying the charges are well-established, the end result is often a sentence much closer to the maximum allowed under the law.
“I can say generally that, across jurisdictions, prosecutors typically rely on the prospect of harsh alternatives to incentivize pleading,” said Lee Kovarsky, a University of Texas law professor.
The basic facts of Trump’s case had been well-known since 2018, when Trump’s former lawyer and fixer, Michael Cohen, pleaded guilty to violating federal campaign finance laws and former National Enquirer publisher David Pecker signed a no-prosecution agreement with federal prosecutors.
Both explained during Trump’s trial the circumstances that led Cohen to pay porn actor Stormy Daniels $130,000 to keep her story about a sexual encounter with Trump out of the headlines in the days leading up to the 2016 election.
Pecker told prosecutors that he refused to get involved in the Daniels payoff after the National Enquirer’s top lawyer advised him that the tabloid’s earlier $150,000 payment to a Playboy model who had a similar story about Trump would become a federal crime if he accepted a reimbursement for it from Trump.
The payment to Daniels by, according to Cohen’s plea, was an illegal campaign contribution that Trump arranged and then reimbursed Cohen for.
At that time, Trump was the sitting president and Department of Justice policy barred prosecutions against him.
Manhattan District Attorney Alvin Bragg pursued a state prosecution of Trump on those same underlying facts but charged him for falsifying business records to hide the illegal campaign contribution. Rather than taking a plea, though, Trump insisted that he had done nothing wrong.
Late last month, a Manhattan jury agreed that Bragg was right and that Trump had, in fact, falsified 34 such records for that purpose.
While Trump faces three other indictments, including two based on his Jan. 6, 2021, coup attempt, at the time of his scheduled sentencing on July 11 he will be a first offender in a non-violent crime — a category that, had Trump pleaded guilty, would have almost certainly given him no time behind bars.
“That ship has sailed,” Roiphe said, adding that all of Trump’s outside-the-courtroom behavior that judge Juan Merchan prevented the jury from considering in its deliberations was now fair game in his sentencing decision, including his “conduct during the trial and around the trial and his disrespect for the process.”
Agnifilo said that Trump’s attacks on and attempts to intimidate witnesses should weigh heavily in Merchan’s decision.
“A defendant should be rewarded for taking responsibility for their actions and sparing witnesses and victims from this arduous and often painful process. Here, Trump still has never taken responsibility, shows no remorse, continues to deny it and, if he could, would attack the witnesses,” she said.
Each of the 34 felonies Trump was convicted on carries a maximum sentence of one and one-third to four years in state prison, although multiple felonies arising from the same criminal act — there were 11 separate payments to Cohen ― generally result in a single sentence. Merchan could further let all Trump’s sentences run “concurrently,” could give the former president house arrest or even just give him probation and fines.
Most importantly for Trump, he could delay any sentence of incarceration until after Trump has pursued an appeal — a courtesy often granted in non-violent offenses. That would almost certainly mean that Trump, the presumptive 2024 GOP presidential candidate, would remain free in the final months leading up to the November election.
Trump’s continued attacks on the justice system — and his refusal to express even a modicum of remorse — could make it hard for Merchan to find a way to avoid giving Trump at least some period behind bars without acknowledging that Trump is getting special treatment, Roiphe said.
“It almost makes it difficult for the judge to be as lenient as the defense might want,” she said.
If convicted on the Jan. 6 charges in either federal or Georgia state court, Trump could receive decades in prison. A separate federal prosecution based on his refusal to turn over secret documents he took with him to his South Florida country club upon leaving the White House could also result in decades in prison time.
If Trump manages to win back the White House, however, he could order the Justice Department to dismiss any federal charges against him that remain unresolved and likely win a delay of the Georgia state prosecution until he is no longer in office.
