On May 29, as Donald Trump left the Manhattan courthouse where the jury had started deliberating whether the former president was guilty or not in the Stormy Daniels hush money case, he looked like a worried man.
Speaking to reporters outside the courthouse, Trump mentioned Allen H. Weisselberg, the former chief financial officer of the Trump Organization, who is serving five months in jail at a Rikers Island prison for perjuring himself during the Trump Organization's civil business trial last year. Trump, it seems, is worried about the possibility of jail time if he is convicted.
After nearly 50 days of trial and testimony, the hush money case, which is the first criminal trial of a US president, has reached its final stage. On May 29, a jury of 12 New Yorkers started deliberating whether to hold Trump guilty or not. They could take days or weeks to reach a verdict. Meanwhile, there is intense speculation whether Trump would face prison time if he is pronounced guilty.
The hush money case involves charges of Trump falsifying business documents to cover up the $130,000 payment made to adult movie actor Stormy Daniels to ensure her silence about an alleged sexual encounter in 2006. The payment was made during the 2016 presidential election season. Trump has been charged with 34 counts of falsifying records to hide the payments. Each one of them carries a maximum sentence of four years and a fine of $5,000, but there is a 20-year sentencing cap in New York for such offences.
The judge could also decide that the sentences could be served concurrently. And, the New York penal code permits judges to impose lenient sentences—like less than a year—for first-time convicts in non-violent cases.
Conventional wisdom, however, suggests that Trump is unlikely to go to jail because class E felonies are the least serious category and Trump has no previous felony convictions. Moreover, he is 77, a former president and the presumptive Republican nominee in this year's presidential elections and the crime in question is not a violent one. An analysis of recent similar cases prosecuted by the Manhattan district attorney shows that only one in ten convicts had to serve jail time.
If the jury reaches a guilty verdict, the next step would be reassessing Trump's bail conditions. Prosecuting attorneys might ask for an increased bail and/or stricter bail terms. But since Trump is not exactly a flight risk and he has already posted a $175 million bond, the presiding judge, Juan Merchan, is unlikely to change the terms. The next stage would be sentencing, and the hearing could start as early as July. Unfortunately for Trump, it could coincide with the Republican National Convention, where he would be formally anointed as the party's presidential nominee.
Merchan, the presiding judge, has the sole authority of sentencing Trump. State law gives him a fairly wide margin in deciding the punishment. He could send Trump home by considering time served, deeming that the time spent for trial in itself is the punishment. Or Merchan could opt for a conditional discharge, essentially setting Trump free and ordering him to perform some sort of community service.
Another option is probation, in which case Trump will have to report to a probation officer regularly and may face jail time if he breaks any law or violates any other conditions imposed by the judge. The last option is to impose a prison sentence.
Going by Merchan's statements so far, he may not be keen to send Trump to jail, especially because of its political ramifications. “He is a candidate for the presidency of the United States. So those First Amendment rights are critically important,” observed Merchan. “I also worry about the people who would have to execute that... court officers, correction officers, Secret Service detail."
During the trial, Merchan had imposed a gag order on Trump to stop him from threatening and publicly criticising witnesses and court officials. He found Trump in contempt for violating the order ten times and fined him $1,000 for each violation. Although Merchan said he would consider putting Trump in jail for the repeated violations, he chose not to follow up on the threat.
If Trump is indeed awarded a prison sentence, he will certainly appeal the verdict, and the process could take months or even years, till all possible options are exhausted. He would have 30 days to file a notice of appeal and then six months to file a full appeal. Trump's first stop would be the appellate division in Manhattan and if the guilty verdict is upheld, he can approach the court of appeals in Albany. The seven-member body is the highest appellate court in New York, which also has the discretion over whether to admit the appeal or not.
If the court of appeals upholds the verdict, Trump is likely to approach the Supreme Court. But since the case deals with a state issue, Trump will have to convince the apex court that there has been some federal or constitutional violation for the court to admit the appeal. On the practical side, this means that it could take a long time before Trump actually sees the inside of a New York jail. However, if he is convicted, Trump will not be able to pardon himself as this is a state crime and only the governor of New York has the power to issue a pardon.
If Trump receives a sentence of one year or less, he would be sent to the infamous Rikers Island, home to the Department of Correction's seven jails. And, he would be eligible for parole after serving two-thirds of his sentence. But if the sentence is for more than a year, the New York Department of Corrections would choose from one of its 44 prisons to house the former president.
Trump would continue to enjoy Secret Service protection even when he is in jail as the agency is mandated to protect the former president round the clock. Trump will have to be kept away from other inmates and his food and other personal items will have to be monitored and tested all the time.
According to a New York Times report, "a detail of Secret Service agents would work 24 hours a day, seven days a week, rotating in and out of the facility. While firearms are obviously strictly prohibited in prisons, the agents would nonetheless be armed."
Interestingly, Trump can run for president even if he is convicted and lodged in a New York prison. That is because nothing in the US Constitution prevents a convicted or incarcerated person from running for the highest office if he is a natural-born citizen who is at least 35 years old and has lived in the US for at least 14 years. He could still run and win even if he is in jail. But what happens next will be interesting, for instance, how Trump will take oath as president and discharge his official duties from a prison cell.
Technically, the vice president and a majority of the cabinet could invoke the 25th Amendment and transfer the presidential authority to the vice president if the president is unable to discharge his duties. But all those cabinet positions will be filled by hardcore Trump loyalists so nothing could happen without Trump's approval. Clearly, the founding fathers never contemplated the possibility of a convicted felon running the country.