Trump’s crime of falsification of business records is considered a Class E felony — the lowest-level felony, punishable by up to four years in prison. (Punishment for each count would run concurrently, so the maximum would be four years, not 136 years.) Some, but certainly not most, of the convictions on these types of charges do result in prison time. In “Trying Trump: A Guide to His First Election Interference Criminal Trial,” Norm Eisen examined almost 10,000 prosecutions for falsifying business records in New York since 2015, finding that about 10 percent resulted in prison time. While Trump’s status as a first-time offender would not exempt him from prison time, it normally would weigh in favor of a lighter sentence such as probation only or minimal prison time. But is this a normal case?
Fraudulent record-keeping charges routinely get elevated to felonies (contrary to uninformed critics who thought this was an exotic maneuver), but Justice Juan Merchan has already recognized Trump’s crime was especially significant because of its momentous consequences: concealing possibly outcome-determinative information from the voters in 2016. (Even Trump cronies recognized the magnitude of their chicanery. “What have we done?” attorney Keith Davidson texted the editor of the National Enquirer after the election.)
Merchan wrote in a pretrial ruling that “while it is true that the charges involve the lowest level felony and no one suffered physical harm, it can hardly be said that the allegations are not severe.” He stressed: “The People claim that the Defendant paid an individual $130,000 to conceal a sexual encounter in an effort to influence the 2016 Presidential election and then falsified 34 business records to cover up the payoff. In this Court’s view, those are serious allegations.” And, therefore, the convictions are serious.
In addition to the gravity of the offense, the factors weighing most heavily in favor of a significant prison sentence are Trump’s conduct and character. It is not “simply” that Trump has multiple civil judgments against him (e.g., sexually abusing and defaming E. Jean Carroll, inflating his property values and misusing charitable funds) or that he spearheaded a violent insurrection to overturn an election or even that his conduct resulted in multiple contempt citations in Merchan’s and Justice Arthur Engoron’s courtrooms. In this case, character and conduct also encompass how Trump treats the criminal justice system.
From that perspective, imprisonment may be the only effective penalty because of Trump’s defective character. Chump-change fines for contempt during the trial did not slow him down. So long as he remains at large, with unfettered access to social media, he poses a threat to the people he attacks and the judicial system he maligns. Incarceration is the only means of holding Trump accountable for his wholesale attacks on the rule of law that continue to this day.
Merchan should take into account that Trump has hurled threats and smears at witnesses, jurors and the judge (including his family). He also should consider the racist attacks and implicit threat of violence directed at Manhattan District Attorney Alvin Bragg. The felon who will stand before him has tried to intimidate witnesses and delegitimize the New York courts as corrupt. In continuing to incite his mob (that now threatens the safety of the anonymous jurors) and demean the courts as “rigged,” Trump does far more damage to the people of New York (not to mention the country) than he did with any single criminal act. The potential that New Yorkers will be less willing to serve as jurors after watching the vitriol unleashed on these 12 people could be among Trump’s most enduring injuries to the court system.
Taking a step back, Trump’s tactics are familiar to those who study fascism. “Fascism encourages contempt for democratic institutions, particularly elections, and the rule of law,” the Public Leadership Institute explained in a 2022 essay synthesizing a number of works. “Instead, it calls on the majority group to turn over power to a strongman and his lieutenants, while glorifying the use of violence in support of fascist myths and goals.”
From historical and modern examples, we know that illiberal movements “have as a priority to control the judiciary, because only by doing so it is possible for them to consolidate an authoritarian electoral model.” When independence of the courts is eroded and the leader and his cult accept as “fair” only the outcomes that favor their cause, they can proceed to take a wrecking ball to other democratic institutions. (The Supreme Court’s transparent effort to block Trump’s Jan. 6 trial before the election shows that the MAGA effort to control the judiciary is well underway.)
With other criminal cases against Trump delayed, Merchan alone has the responsibility for the foreseeable future to mete out punishment that is appropriate for Trump’s crimes and sufficient to protect the justice system. The voters ultimately will have to reject fascism at the ballot box, but at present Merchan must exercise his discretion in sentencing Trump to actual incarceration for at least a year to shelter the independent judiciary — judges, jurors and witnesses — threatened by this felon and his rhetoric. If he does not, he puts New Yorkers and the Constitution at risk.
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