Everyone wants to know whether Trump will go to jail. You bet he could. The Florida resident could even run for president from jail as Socialist leader Eugene Victor Debs did in 1920. Debs was convicted under the Espionage Act for his anti-war activities and speeches opposing American involvement in World War I. He garnered almost a million votes. Americans are a forgiving people.
Sentencing is an exquisite process in which the judge must weigh many factors to arrive at a just result.
In Trump’s case, he is 77 years old, which is a mitigating factor. He started to make this point during his Trump Tower post-conviction rant, and then, realizing that he had made Biden’s age a campaign issue, dialed it back. You could almost see the lightbulb go off in his brain.
Trump has no prior criminal convictions, but he has many negatives that Judge Juan Merchan is expected to consider.
He hasn’t been remorseful and hasn’t accepted responsibility. That’s not his style. I would be astonished if the words “I am sorry” were in his vocabulary.
Instead, Trump has painted himself as a martyr, saying that if this could happen to him, it could happen to any of us, calling the indictment, the prosecution, and the verdict a kind of fascism. His attempt to undermine the legal system will undoubtedly be held against him.
A further aggravating circumstance is that Trump violated Judge Merchan’s gag order and has been held in contempt for it at least ten times. Since the verdict, he has continued to violate the gag order by attacking the star prosecution witness, Michael Cohen, whom he referred to as a “sleaze bag.”
Trump attacked the jury, the witnesses, the judge’s daughter, the prosecutor Alvin Bragg, and members of his staff. This is a serious business. A word from Trump led to a mass attack on the Capitol. It is hardly a stretch to surmise that another signal might lead to a shot fired through somebody’s window. These people are in grave danger due to the extraordinarily courageous performance of their civic duty.
And another aggravating circumstance. Trump has been sued successfully in civil suits, one a defamation about his sexual assault on journalist E. Jean Carroll in a department store dressing room, the other a fraud suit brought by the attorney general of the State of New York, which resulted in a restitution judgment for half a billion dollars.
Another exacerbating factor is the serious crime—attempting to influence an election illegally. This isn’t the minor crime of the broken-window theory. Trump’s assault on democracy in 2016 set the table for January 6. The point is he did it again. And, if he is not punished with a jail sentence, he will do it again. A meaningful deterrent is indicated for Trump and others.
It is also not irrelevant that Trump repeatedly lied about the prosecution, blaming his situation on his presidential rival, Joe Biden. There is no evidence that Biden or the federal government had anything to do with prosecuting this case.
I predicted that Trump would be convicted, and I expect now that he will be sentenced to a short term of imprisonment fashioned to deter him and others from future similar conduct. If Trump is sentenced to jail, he will most likely not be incarcerated pending appeal, and the appellate process is likely to take us way past the election.
Will Trump appeal? It may turn on whether he is elected president. We cannot have presidents discharging their official duties from a prison cell. As he has vowed, Trump can try to self-pardon his way through the two federal cases and even pardon all the imprisoned offenders in the January 6 case. But, he would have no power to pardon the state criminal cases in Georgia or New York.
Legal experts are dubious about whether Trump’s appeal has any merit. There are really few appellate issues. Whatever errors seen in the trial appear to be harmless. The 45th president has tried to create the impression that an appellate court would find him innocent, likening himself to Mother Teresa, insisting he had done nothing wrong, and calling himself a “very innocent man.” This is a prosecution that could not conceivably happen to Mother Teresa.
Actually, appellate courts do not make findings of guilt or innocence. That’s what juries are for. It is the law that if the evidence is sufficient to warrant submission to the jury, it is not for appellate judges to weigh the evidence or to determine the credibility of witnesses.
Other purported appellate issues have been floated into the blogosphere, some frivolous, others more worthy of consideration. But I have seen nothing that leads me to conclude that Trump did not have a fair trial or that his conviction was unauthorized by New York law. Enhancing a misdemeanor into a felony was not some Frankenstein’s monster conjured up by the redoubtable District Attorney Alvin Bragg. This was done many moons ago by the New York state legislature.
Because of this conviction, Trump’s path forward is a bumpy ride. He claimed he had raided post-verdict $34 million (subsequently grossed up to $39 million) in new contributions, making me wonder whether, if being convicted is a great fundraising device, why doesn’t he withdraw his claims of immunity in the District of Columbia, and ask for a speedy trial. He could do the same thing in Florida, where an incompetent judge has delayed the most robust case against him, arising out of the Mar-a-Lago classified documents to sink into near morbidity.
If he is a “very innocent man,” as he professes, why doesn’t he demand a speedy process to establish his innocence? He doesn’t because he wants to undermine our legal system, which he has tried to politicize. He has capitalized on an inept federal judge in Florida and a MAGA Supreme Court, which must be flying the flag at half-mast over his conviction. Mesdames Alito and Thomas must be dressed in widow’s weeds over the jury verdict.
Trump strangely likened his prosecution to that of gangster Al Capone. Covering up a hush money payment to a porn star to influence an election may be the most venial of Trump’s crimes. I guess tax evasion may have been the least of gangster Al Capone’s crimes too.
The Merrick Garland Justice Department passed on prosecuting Trump over the case where he was just convicted. His fixer, Michael Cohen, pleaded guilty in the federal court to the very campaign finance laws, which were part of the predicate for the felony enhancement in the state court case. If there were politics involved in the calculus of passing on Trump in the federal court, it was that his trial and conviction would make him a martyr—a more attractive candidate to his political base.
Under New York law, as opposed to federal law, a conviction cannot be secured based on the uncorroborated testimony of an accomplice. Here, there was overwhelming documentary evidence and the testimony of other witnesses in the Trump camp, which corroborated Michael Cohen and the jury’s verdict.
Despite his “if you get a lemon, make lemonade” attitude, this week’s events have hurt Donald Trump. It just needs time to sink in. This is the first former president in our 230-year history to be a convicted felon.
There is no getting around it; it has to cost him votes, maybe decisive votes in a close election. Polls already show the conviction repels independents. Let’s see what the polls say in Michigan, Wisconsin, Pennsylvania, Georgia, Nevada, North Carolina, and Arizona swing states in the coming weeks. Let’s determine whether Trump’s felony conviction disqualifies him from a second term as Commander-in-Chief.
Trump’s inveterate prejudice against African Americans, Jews, Latinos, Muslims, and women is well-known. Who can forget his contempt for those in the armed forces to the extent that he refused to visit the graves of our fallen heroes in France? “He’s not a war hero,” he said of John McCain, who served as a Navy officer and was a P.O.W. for more than five years in North Vietnam. “He’s a war hero ’cause he was captured. I like people that weren’t captured.” Trump wasn’t captured in Vietnam because he evaded the draft by telling his draft board he had bone spurs in the heel of his foot. He provided a “strong letter” signed by a podiatrist whose offices were in a Trump building. The doctor devised the letter as a “favor” to Trump’s father.
Ask any Republican or independent. Aren’t you disturbed at the prospect of having the occupant of the highest office in the land a twice-impeached convicted felon who’s an adjudicated rapist, defamer, fraudster, insurrectionist, and election denier? That’s what sitting it out or voting for anyone but Biden would do. If that’s not enough, add a reminder about Trump’s use of lies to steal the 2016 election, his failed attempt to overturn the 2020 election, and his brazen plans to “terminate the Constitution” and arrogate dictatorial powers.
We will have to see whether his felony conviction is no more dispositive to the American people than his well-known disqualifying history as a bigot and a serial liar, sure to give us another term of chaos, corruption, and vengeance against his political enemies.
