Trump Sentencing Will Put Merchan’s Bias in Crosshairs

On July 11, acting New York Judge Juan Merchan will sentence former President Donald Trump.

Possibilities for sentencing

Trump was convicted in a New York State court in Manhattan on a novel theory and on facts never before used to secure a conviction in New York. Disregarding at least a dozen reasons his conviction should be reversed, because Trump was convicted of falsifying records with the intent to commit a second crime – illegally interfering in the 2016 presidential election – the falsification was upgraded to a class E felony, comprising 34 counts, one for each entry. The maximum penalty is four years in jail on each count, not to exceed a total of 20 years.

New York defendants sentenced to less than a year are usually jailed in notorious Rikers Island, known for its overcrowding, drug problems, and violence. The New York City Council voted to close the facility by 2026. New York Post photos from just a few years ago show the awful conditions there.

For sentences of a year or longer, Trump could be remanded to one of 41 state prisons for men, though most likely to one of the three minimum security facilities. It seems highly unlikely that the U.S. Secret Service would permit Trump to be held in a New York prison. While space might be made available in a federal prison, or a building converted for exclusive use by Trump, it is more likely that he would serve any sentence in home confinement, wearing an ankle monitor.

What will Judge Merchan consider?

Alternatives to incarceration include probation for up to 10 years, unconditional discharge, or discharge, without probation, conditioned on not committing a further crime during the following three years, and a fine of up to $5,000.

Merchan could order that confinement be limited to weekends or nights, and could permit exceptions for political or business activities. He also could split the sentence, for example, requiring 30 days of home confinement followed by conditional discharge.

Even if Trump is conditionally discharged or given probation but is later convicted of another crime, he could be remanded to prison. In setting the sentence, Merchan will consider a mandatory Pre-Sentence Report and the nature of the crime in addition to Trump’s background, age, and health. Manhattan District Attorney Alvin Bragg follows a policy of not recommending incarceration for those convicted of non-violent class E felonies. During the trial, Merchan observed that he sees incarceration as a “last resort.”

Trump’s indictment for numerous other crimes and his frequent violations of Merchan’s gag order will make unconditional release less likely. However, Trump’s evaluation also will suffer because of recent verdicts that he is liable for civil fraud and defamation, and for presumably refusing to accept guilt during the pre-sentence interview.

If Merchan shows bias…

If Merchan properly considers the nature of the offense, that similar offenses have not been prosecuted in New York, the “false records” were internal Trump accounts, there was no monetary loss, and the so-called effort to interfere in the 2016 election failed in New York (where Clinton overwhelmingly won), and Trump has no prior record, there should be no jail time or home confinement.

However, if Merchan approaches sentencing with the same antagonism to Trump’s rights he brought to the trial, he can be expected to cite a fraud on the national electorate to justify at least a brief period of home confinement. Even then, it would be shocking if Merchan did not stay the sentence until after the election, pending Trump’s appeal.

Trump’s appeal options

Trump likely will appeal to New York’s intermediate appeals court and will seek to have any sentence stayed pending the outcome of the appeal. Given the multitude of errors at trial and the pending election, it is a near certainty that his request for a stay will be granted.

Trump could also bring an action in federal district court asserting that Bragg and Merchan lacked jurisdiction to accuse him of interfering in a federal election, and he was not given adequate notice of the alleged crimes. It is unlikely a federal judge would get involved prior to a state appeals court. Trump could seek intervention from the U.S. Supreme Court, but federal statutes generally require that the highest court in a state rule before the Supreme Court intervenes.

In the end, it seems likely that Trump’s conviction will be overturned. Whether the sentence is harsh or a slap on the wrist, the entire process has been a political prosecution intended to keep Trump off the campaign trail and give Biden the talking point that Trump is a convicted felon. That flagrant abuse of due process is not how our justice or electoral systems are supposed to work.

This article was originally published by RealClearPolitics and made available via RealClearWire.