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Guest Essay

What Sentencing Could Look Like if Trump Is Found Guilty

By Norman L. Eisen

Mr. Eisen is the author of “Trying Trump: A Guide to His First Election Interference Criminal Trial.”

For all the attention to and debate over the unfolding trial of Donald Trump in Manhattan, there has been surprisingly little of it paid to a key element: its possible outcome and, specifically, the prospect that a former and potentially future president could be sentenced to prison time.

The case — brought by Alvin Bragg, the Manhattan district attorney, against Mr. Trump — represents the first time in our nation’s history that a former president is a defendant in a criminal trial. As such, it has generated lots of debate about the case’s legal strength and integrity, as well as its potential impact on Mr. Trump’s efforts to win back the White House.

A review of thousands of cases in New York that charged the same felony suggests something striking: If Mr. Trump is found guilty, incarceration is an actual possibility. It’s not certain, of course, but it is plausible.

Jury selection has begun, and it’s not too soon to talk about what the possibility of a sentence, including a prison sentence, would look like for Mr. Trump, for the election and for the country — including what would happen if he is re-elected.

The case focuses on alleged interference in the 2016 election, which consisted of a hush-money payment Michael Cohen, the former president’s fixer at the time, made in 2016 to a porn star, Stormy Daniels, who said she had an affair with Mr. Trump. Mr. Bragg is arguing that the cover-up cheated voters of the chance to fully assess Mr. Trump’s candidacy.

This may be the first criminal trial of a former president in American history, but if convicted, Mr. Trump’s fate is likely to be determined by the same core factors that guide the sentencing of every criminal defendant in New York State Court.

Comparable cases. The first factor is the base line against which judges measure all sentences: how other defendants have been treated for similar offenses. My research encompassed almost 10,000 cases of felony falsifying business records that have been prosecuted across the state of New York since 2015. Over a similar period, the Manhattan D.A. has charged over 400 of these cases . In roughly the first year of Mr. Bragg’s tenure, his team alone filed 166 felony counts for falsifying business records against 34 people or companies.

Contrary to claims that there will be no sentence of incarceration for falsifying business records, when a felony conviction involves serious misconduct, defendants can be sentenced to some prison time. My analysis of the most recent data indicates that approximately one in 10 cases in which the most serious charge at arraignment is falsifying business records in the first degree and in which the court ultimately imposes a sentence, results in a term of imprisonment.

To be clear, these cases generally differ from Mr. Trump’s case in one important respect: They typically involve additional charges besides just falsifying records. That clearly complicates what we might expect if Mr. Trump is convicted.

Nevertheless, there are many previous cases involving falsifying business records along with other charges where the conduct was less serious than is alleged against Mr. Trump and prison time was imposed. For instance, Richard Luthmann was accused of attempting to deceive voters — in his case, impersonating New York political figures on social media in an attempt to influence campaigns. He pleaded guilty to three counts of falsifying business records in the first degree (as well as to other charges). He received a sentence of incarceration on the felony falsification counts (although the sentence was not solely attributable to the plea).

A defendant in another case was accused of stealing in excess of $50,000 from her employer and, like in this case, falsifying one or more invoices as part of the scheme. She was indicted on a single grand larceny charge and ultimately pleaded guilty to one felony count of business record falsification for a false invoice of just under $10,000. She received 364 days in prison.

To be sure, for a typical first-time offender charged only with run-of-the-mill business record falsification, a prison sentence would be unlikely. On the other hand, Mr. Trump is being prosecuted for 34 counts of conduct that might have changed the course of American history.

Seriousness of the crime. Mr. Bragg alleges that Mr. Trump concealed critical information from voters (paying hush money to suppress an extramarital relationship) that could have harmed his campaign, particularly if it came to light after the revelation of another scandal — the “Access Hollywood” tape . If proved, that could be seen not just as unfortunate personal judgment but also, as Justice Juan Merchan has described it, an attempt “to unlawfully influence the 2016 presidential election.”

History and character. To date, Mr. Trump has been unrepentant about the events alleged in this case. There is every reason to believe that will not change even if he is convicted, and lack of remorse is a negative at sentencing. Justice Merchan’s evaluation of Mr. Trump’s history and character may also be informed by the other judgments against him, including Justice Arthur Engoron’s ruling that Mr. Trump engaged in repeated and persistent business fraud, a jury finding that he sexually abused and defamed E. Jean Carroll and a related defamation verdict by a second jury.

Justice Merchan may also weigh the fact that Mr. Trump has been repeatedly held in contempt , warned , fined and gagged by state and federal judges. That includes for statements he made that exposed witnesses, individuals in the judicial system and their families to danger. More recently, Mr. Trump made personal attacks on Justice Merchan’s daughter, resulting in an extension of the gag order in the case. He now stands accused of violating it again by commenting on witnesses.

What this all suggests is that a term of imprisonment for Mr. Trump, while far from certain for a former president, is not off the table. If he receives a sentence of incarceration, perhaps the likeliest term is six months, although he could face up to four years, particularly if Mr. Trump chooses to testify, as he said he intends to do , and the judge believes he lied on the stand . Probation is also available, as are more flexible approaches like a sentence of spending every weekend in jail for a year.

We will probably know what the judge will do within 30 to 60 days of the end of the trial, which could run into mid-June. If there is a conviction, that would mean a late summer or early fall sentencing.

Justice Merchan would have to wrestle in the middle of an election year with the potential impact of sentencing a former president and current candidate.

If Mr. Trump is sentenced to a period of incarceration, the reaction of the American public will probably be as polarized as our divided electorate itself. Yet as some polls suggest — with the caveat that we should always be cautious of polls early in the race posing hypothetical questions — many key swing state voters said they would not vote for a felon.

If Mr. Trump is convicted and then loses the presidential election, he will probably be granted bail, pending an appeal, which will take about a year. That means if any appeals are unsuccessful, he will most likely have to serve any sentence starting sometime next year. He will be sequestered with his Secret Service protection; if it is less than a year, probably in Rikers Island. His protective detail will probably be his main company, since Mr. Trump will surely be isolated from other inmates for his safety.

If Mr. Trump wins the presidential election, he can’t pardon himself because it is a state case. He will be likely to order the Justice Department to challenge his sentence, and department opinions have concluded that a sitting president could not be imprisoned, since that would prevent the president from fulfilling the constitutional duties of the office. The courts have never had to address the question, but they could well agree with the Justice Department.

So if Mr. Trump is convicted and sentenced to a period of incarceration, its ultimate significance is probably this: When the American people go to the polls in November, they will be voting on whether Mr. Trump should be held accountable for his original election interference.

What questions do you have about Trump’s Manhattan criminal trial so far?

Please submit them below. Our trial experts will respond to a selection of readers in a future piece.

Norman L. Eisen investigated the 2016 voter deception allegations as counsel for the first impeachment and trial of Donald Trump and is the author of “Trying Trump: A Guide to His First Election Interference Criminal Trial.”

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow the New York Times Opinion section on Facebook , Instagram , TikTok , WhatsApp , X and Threads .

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Follow our news, recent searches, commentary: dispelling us-china myths before they become self-fulfilling prophecies, advertisement.

Understanding the nuances beyond the “securitisation of everything” can help the world navigate the delicate and complex US-China relationship, says the S Rajaratnam School of International Studies’ Chang Jun Yan.

US President Joe Biden meets with Chinese President Xi Jinping on the sidelines of the G20 leaders' summit in Bali, Indonesia, Nov 14, 2022. (File photo: Reuters/Kevin Lamarque)

This audio is AI-generated.

Chang Jun Yan

SINGAPORE: Here is a typical description of United States-China relations: The “securitisation of everything” has led to the two countries seeing areas beyond traditional security concerns through the lens of national security - from economic ties to higher education. It has led to a lack of trust, hampering mutual cooperation and the rest of the world may eventually have to pick sides.

The US-China relationship is the most consequential one for the world and will likely remain competitive. So it’s valuable to address myths and paint a more nuanced picture.

Here are three nuances: The US security portrayal of China is not simply black and white and this has remained substantively consistent over time. Mistrust does not necessarily prohibit cooperation. And greater competition between the US and China does not constrain other countries to choosing one or the other.

A THREAT IN ECONOMIC, CYBERSECURITY DOMAINS

US official governmental discourse does not depict China as an outright threat. China is specifically represented as a national security threat mainly in the inter-related economic and cybersecurity domains.

Over the years, the US has criticised what it perceives as unfair Chinese economic practices, including export subsidies, currency manipulation, poor labour and environmental regulations, and espionage. Crucially, various policies have generally failed to resolve the trade imbalance between the two.

The 2022 Annual Threat Assessment intelligence report thus warned that “Beijing’s willingness to use espionage, subsidies and trade policy to give its firms a competitive advantage” is “an ongoing challenge for the US economy and its workers”.

In the cyber domain, the 2019 intelligence report asserted that: “Beijing will authorise cyber espionage against key US technology sectors when doing so addresses a significant national security or economic goal not achievable through other means”, further linking the cyberthreat from China to the economic threat to US national security.

American officials have long pointed the finger at Chinese hackers for cyberattacks, including one on the Pentagon in 2007. More recently in March, the US justice department claimed that a state-run hacking group targeted strategically important companies and government officials.

The Trump administration started the so-called trade and tech wars against China. But this was a culmination of - not a sudden rupture from - US efforts to combat the economic and cyberthreats. Unsurprisingly, US President Joe Biden’s administration has continued these.

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A risk in military, political sectors.

In comparison, within the military and political sectors, the US representation of China is more as a risk to the international community.

Here, the distinction between a risk and a threat is threefold. A risk is a potential, rather than direct, danger; it can be encompassing but seldom urgent; and dealing with it is about management or prevention as opposed to stopping or resolving a threat.

The White House’s 2022 National Security Strategy document calls Russia an “immediate threat to the free and open international system, recklessly flouting the basic laws of the international order today”, while China is described as, “the only competitor with both the intent to reshape the international order and, increasingly, the economic, diplomatic, military, and technological power to advance that objective”.

To the US, China is a military risk towards peace and stability (particularly in the Asia-Pacific); and a political risk in terms of changing the rules-based order, unlike Russia which has outright threatened these.

A crucial area of the US-China relationship which has not been securitised is societal. Even when the Trump administration dragged up the Cold War spectre of Chinese communism, it differentiated the government from the Chinese people. Then US state secretary Mike Pompeo, who had called the Chinese Communist Party “the central threat of our times”, also said that the US “had long cherished its friendship with the Chinese people”.

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Space for cooperation and manoeuvres.

Despite such nuances about securitisation, the US and China still have many disagreements, such as over how peace, stability and (which) rules, are maintained. Naturally, this has led to growing mistrust.

We tend to think of trust as “trustworthiness”, or whether others share our fundamental moral values and therefore should be treated as we would wish to be treated by them, which has social and psychological dimensions.

There can be a more calculative trust, however, based upon expectations about behaviour which may be created through enforcement, supervision or other mechanisms. So, cooperation may occur even between untrustworthy parties, as long as there are payoffs and structures in place so that the other party will act appropriately.

Even the US and the Soviet Union could agree on the nuclear non-proliferation treaty during the Cold War. And indeed, after meeting in November 2023 in a perceived effort to cool tensions, Mr Biden and Chinese President Xi Jinping agreed to address climate change and fentanyl trafficking .

What about the related aphorism that as US-China tensions rise, there will be less room for other countries to manoeuvre? The Cold War demonstrated that greater differences may instead allow more space for other countries to play one off against the other, as many of the countries in the non-aligned movement accomplished.

Other countries have their own autonomy, to protect and advance their own interests first and foremost. Indonesia, for instance, has practised a “free and active” foreign policy since it became independent, “rowing between two reefs” during the Cold War.

While the world continues to navigate the delicate and complex US-China relationship for all its ups and downs, it is important to dispel some of the myths, lest they become self-fulfilling prophecies.

Chang Jun Yan is Assistant Professor with the Military Studies Programme and the US Programme at the S Rajaratnam School of International Studies, Nanyang Technological University. 

Dissertations on the prophecies

Which have remarkably been fulfilled and at this time are fulfilling in the world, by newton, thomas.

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Dissertations on the Prophecies, Vol. 2 of 2: Which Have Remarkably Been Fulfilled, and at This Time Are Fulfilling in the World (Classic Reprint) Hardcover – August 24, 2018

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• Print length 429 pages
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• Publisher ‏ : ‎ Forgotten Books (August 24, 2018)
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