After his criminal conviction, Donald Trump faces uncertainty about whether he could be sentenced to prison — and a looming fight to have the former president’s verdict overturned on appeal.
Pivotal proceedings remain ahead for Trump after a New York jury convicted him Thursday. It’s unclear how his conviction and potential sentence may influence the presidential campaign, and the appeals process is expected to stretch well beyond Election Day on Nov. 5.
The first step for Trump is his sentencing, which New York Supreme Court Justice Juan Merchan scheduled for July 11. The judge, who oversaw Trump’s trial, will also decide his punishment. Potential sentences include up to four years in prison, home confinement, probation or a fine.
Trump was convicted on all 34 felony counts of falsifying business records in connection with a hush money payment made to Stormy Daniels, an adult-film actress, ahead of the 2016 presidential election to keep her quiet about a sexual encounter she says they had years earlier. Trump, the presumptive GOP presidential nominee this year, denies that they had sex.
Before Merchan makes any decision on Trump’s punishment, prosecutors and defense attorneys can lobby for a particular sentence. Trump is also required to report to the New York City Department of Probation for an interview, where he will be quizzed about his personal history and mental health, before that department provides Merchan with a presentencing report.
The felonies Trump was convicted of could carry a sentence of 16 months to four years in prison. Merchan could also fine Trump or sentence him to house arrest or probation, which would require him to seek approval from a probation officer before traveling out of the state.
Legal experts have been skeptical that the former president would face incarceration, noting his age — he will turn 78 on June 14 — and lack of any prior criminal record. Those factors, combined with his conviction of nonviolent Class E felonies — the lowest level in New York — would typically make him an unlikely candidate for prison time, said Matthew Galluzzo, a New York defense attorney and former prosecutor in Manhattan.
One element that could help determine the sentence is Trump’s behavior. Legal observers said his antagonistic commentary on the case could sway Merchan’s eventual decision — and not necessarily in Trump’s favor.
Throughout the proceedings, Trump blasted the trial, Merchan and Manhattan District Attorney Alvin Bragg (D), whose office prosecuted the case. Merchan fined Trump $10,000 for 10 violations of a court-imposed gag order and twice found him in contempt of court. Trump continued to excoriate the case after the verdict was reached, denouncing what he called “a rigged trial by a conflicted judge who was corrupt” and dismissing the proceedings as “a scam.”
Trump’s remarks could complicate Merchan’s decision because judges use sentencing to send a message of deterrence to the public, Galluzzo said, and Trump’s lack of remorse could count against him.
“He’s almost daring the judge to do it: ‘What are you going to do about it?’” Galluzzo said of Trump’s attitude as he faces a possible prison sentence.
Whether a convicted defendant accepts responsibility “does matter to the ultimate sentence,” said Guha Krishnamurthi, an associate law professor at the University of Maryland and former white-collar defense attorney.
“Somebody who … shows disrespect for the criminal process could get a heavier sentence,” he said.
Krishnamurthi said that in some cases, defendants wound up behind bars when they might have avoided it “because they have not accepted responsibility, and they showed disrespect and defiance for the criminal proceeding.”
Todd Blanche, Trump’s lead defense attorney, said Thursday evening that the former president should not face time behind bars based on precedent in other cases.
“Other 77-year-old, first-time offenders would never be sent to jail for this conduct,” Blanche said in a CNN interview.
At a news conference after the verdict, Bragg declined to say whether his prosecutors would seek incarceration.
There are instances where defendants in Trump’s age range with no prior criminal record are sentenced to prison. Galluzzo pointed to the case of Allen Weisselberg, the longtime Trump Organization finance chief who last year was sentenced to five months in jail after pleading guilty to tax fraud, conspiracy and other counts.
Weisselberg’s punishment in that case was handed down by Merchan, who gave him a reduced sentence in exchange for his testimony against the Trump Organization in a tax fraud case. Merchan rebuffed an attempt by Weisselberg’s attorney to further reduce his sentence, noting unhappily that the defendant had helped his wife cheat the Social Security system.
This year, Weisselberg, 76, was again sentenced to five months in jail — this time after pleading guilty to lying under oath.
Even if Trump is sentenced to prison, it is not clear he would serve time soon — or at all, Galluzzo said. He noted that Trump’s attorneys are likely to seek to have any sentence delayed until after appeals conclude, which would almost certainly not happen until after the November election.
The Republican National Convention is scheduled to begin days after Trump’s sentencing, at which point the party is set to formally nominate him for president. His conviction and any potential sentence do not alter his eligibility for office. His punishment could influence his ability to vote in Florida, where he is a resident, though Trump would only be barred from voting there if he is behind bars when it was time to cast a ballot.
Once the sentence is handed down, the clock begins ticking on Trump’s expected appeal. In New York, appeals in criminal cases can only take place after sentencing.
Trump said Friday morning that his side will be appealing the verdict “on so many different things.” Blanche, speaking to CNN on Thursday evening, suggested some possible issues Trump’s side might raise on appeal, including Daniels’s trial testimony.
Daniels recounted her alleged sexual encounter with Trump in sometimes graphic detail when she took the stand. Her depiction of it sounded, at times, nonconsensual, and Blanche requested a mistrial, which Merchan denied.
Sandra Guerra Thompson, a law professor at the University of Houston and a former Manhattan prosecutor, said Daniels’s testimony was central to the government’s case because it helped define Trump’s motivation to keep her quiet before the 2016 election.
“There is a lot of latitude given to prosecutors, when it’s important, to prove motive or intent for an offense,” Thompson said.
Catherine A. Christian, a former Manhattan prosecutor, said it would have taken “Houdini to get an acquittal here.”
Christian, who said she knows the prosecution team but did not speak with it during trial, said even the most high-profile convictions can get reversed. She cited the decision last month from New York’s highest court to overturn former Hollywood titan Harvey Weinstein’s 2020 conviction on sex crimes.
Blanche reiterated his belief during his CNN interview that Trump was unable to get a fair trial in Manhattan because the jury was prejudiced by the enormous media attention on the case. Legal experts acknowledged that Trump’s attorneys are likely to mount an array of challenges but were skeptical of that particular argument.
“Any claim they might have made about prejudice, they probably could have made about any venue in the United States,” Krishnamurthi said. “Everybody knows who Donald Trump is, and they’ve heard lots of stuff about the matter.”
