In attempting to predict the sentence Judge Juan Merchan will impose on Donald Trump, we are certain of one conclusion: If the past is prologue, the sentence will not be motivated by fairness or justice; it will be the harshest sentence Merchan can impose without risking reversal or the possibility that it will help Trump’s electoral prospects.
Such a vindictive sentence could take many forms, excluding actual prison time. Sentencing Trump, a first-time offender, to a prison term for a minor bookkeeping crime would virtually assure a reversal and an outcry from independent voters.
But one possibility would be for the judge to impose a significant prison sentence — say two years — and then suspend it. A suspended sentence would send the message that the judge regarded the crime as serious and warranting imprisonment, but, because of the special circumstances of the case, making a presidential candidate actually serve time would be inappropriate.
A harsher alternative would be to impose a prison sentence and merely delay its imposition until after the election. Since this is a state and not a federal case, even if Trump were to be elected, he could not pardon himself or commute the sentence; only New York State authorities could bring about that result.
The third option would be to impose a steep fine and a probationary sentence that allowed Trump to remain free with certain conditions. The legality of such a sentence would depend on the conditions and their impact on the campaign.
The sentencing is now scheduled for July 11. Under New York law, the appellate process cannot begin until the sentence is imposed. But there is no reason for such a long delay. To be sure, New York law requires a pre-sentence report before a sentence can be imposed. But the judge probably already knows what sentence he’s likely to impose; he probably decided that even before the predicable verdict came down. So there is no good reason for delaying the imposition of sentence and the appeal.
It is important that this appeal be argued and decided before the election so that voters have a more complete assessment of the case. As of now, all they have is the flawed result of a biased process involving a partisan prosecutor, a conflicted judge and a jury selected from a pool of largely anti-Trump voters. The public is entitled to know what the appellate courts will decide before they allow this case to influence their votes.
In dueling op-eds, two New York Times commentators argued about whether a prison term was appropriate. Both authors made the same fundamental error — they assumed that Trump had been convicted of election improprieties. They came to this conclusion based on the fact that the judge instructed the jury that in order to convict of a felony, they had to conclude that the bookkeeping entries were intended to facilitate or cover up another crime. Among the crimes they could consider was election fraud.
But even now — a week after the verdict — we cannot be certain which intended crime or crimes the jurors may have found. Some jurors may have concluded that the intended secondary crime was tax fraud; others may have concluded that it was merely an attempt to cover up the bookkeeping entry itself. Yet others may have found some form of election fraud.
We still don’t know the answer to the judge’s multiple-choice test, since the jury was not obligated to disclose the basis for their verdict. Nor were jurors required to find the intended secondary crime beyond a reasonable doubt — only by a mere preponderance of the evidence.
So, basing the sentence on an assumption that the jury unanimously found the Trump intended to commit election fraud is wrong and unfair. This does not mean that the judge will not base his sentence on such an unfair reading of the ambiguous verdict — he may well do so.
In any event, Judge Merchan has many sentencing options. We would not venture to predict which one he will select, though we are fairly certain, based on his trial rulings, that he will not be motivated by fairness or justice, but rather by the “get Trump” attitude that has dominated this case from beginning to end.
Alan Dershowitz, professor emeritus at Harvard Law School, is the author of numerous books, including his latest, “War Against the Jews: How to End Hamas Barbarism.” He is also the host of The Dershow on Rumble. Follow him @AlanDersh.