Is Judge Merchan Crazy Enough to Give Trump Jail Time?

By Jeffrey Blehar

Monday, June 03, 2024

 

Today I invite you to contemplate the idea of Donald Trump in prison come the conclusion of his sentencing hearing in a Manhattan courtroom on July 11. (To recap for the one poor raggedy prisoner just emerging from two weeks of solitary confinement, Donald Trump was found guilty by a Manhattan jury on Friday on 34 felony counts of being The Worst and Most Unavoidable Person in the World, as per the long-stated goal of elected prosecutor Alvin Bragg.)

 

I know full well that some thrill to the idea of Trump wearing orange for something as ridiculous as “Falsification of Business Records” — ah, the insufferably smug rhapsodies that will choke the pages of the New Yorker and clog the editorials of what remains of the mainstream media. But many others (including most readers) are incandescently outraged at the thought of such a thing happening.

 

And with good reason. Dear readers, if that happens, I want you to get angry and stay that way. There would be no need to cavil or engage in the “both sides” game in that case: To imprison Donald Trump on these incredibly dubious charges in contravention of standard practice — particularly given the explicit political motivation in bringing the case — would be an appallingly irregular abuse of justice on its own terms, without reference to his status as Republican nominee-in-waiting. I remind you that I loathe Donald Trump almost uniquely among modern politicians, reserving a level of contempt for him commensurate to the long-term destruction he has wrought upon our politics and especially my party.  It wouldn’t matter. I would get angry myself, and I don’t think people would like me when I’m angry.

 

I just don’t know if it will happen. In theory, it should be inconceivable; this is a minor crime that was only dubiously a crime in the first place; the defendant is a first-time offender; and most important of all, no party was defrauded. (Hence the need to gesture toward violations of election law, i.e. the “public interest,” without ever having to stipulate to them for the jury.) So victimless was the crime of Trump sordidly paying off a hussy — unless stretched into an election-law matter that Bragg was patently unwilling to put before the jury, and thus only gestured toward — that, amusingly enough, New York was actually over­paid in tax money as a result of how Trump classified and structured his hush money.

 

Furthermore, despite what people are trying to claim in the online discourse these days, this entire prosecution was more or less unique in the state of New York, for so many reasons that Andy McCarthy has run his voice ragged on Fox News and typed his fingers into stubs at National Review explaining them all. It therefore seems sensible to expect Trump to receive a suspended sentence of some sort — quite the immense legal humiliation and guaranteed to cause all sorts of personal and political complications. But given the pettiness of the offense, I suspect Donald Trump will not be heading to Rikers Island.

 

That said . . . what if Judge Merchan surprises the sane legal world? What if he gives Trump actual years? We are being told by media commentators to consider it well within the realm of possibility. Norm Eisen, Brookings Institution pen pusher and CNN legal analyst — as well as a prosecutor on Trump’s first impeachment trial — averred with confidence the other day that Trump’s 34 convictions made the case one of the biggest in state history and that “in the most serious financial business records cases, a sentence of imprisonment is routinely imposed. This is the most serious falsifying business records case in the history of the state of New York. I think Alvin Bragg is going to ask for a sentence of incarceration, and I think Judge Merchan will very seriously consider it.” Eisen is of course practicing a sleight of hand here: In major “falsifying business records” convictions, the reason jail time is almost always handed out is because the cases almost always involve embezzlement from an employer, or defrauding another party of their right to money (including the taxman). But of course we expect a certain level of discourse from partisanly branded commentators, not honesty. I still don’t think it seems plausible.

 

You will notice that my argument that Trump is unlikely to get jail time is based on his status as a nonviolent first-time offender of a victimless and uniquely frankensteined-together novel “crime.” I have avoided arguing that it is due to civic norms like “it would look bad for Democrats to throw the opposition candidate for president in jail just before the election.” So now it’s time for me to point out that, yes, it would look absolutely terrible for the New York court to put Donald Trump behind bars for a jumped-up misdemeanor offense that usually results in fines, precisely because the way such crimes are typically treated would make a disproportionate sentence here look nakedly political. (Also, it would shake the country to its core during the late stages of a presidential election, which is no small thing — the logic here is overdetermined, as they say.) Although the court in theory is supposed to take no notice of this — and remember, the court should offer either a fine or a suspended sentence because that is standard practice, and no other reason — I do trust they understand the problematic optics here.

 

I remain a bit of a stickler about the idea that if you’re actually guilty of a genuinely heinous crime then, well, parties ought to be smart enough to avoid nominating people like that as president. (There are cases yet pending against Trump that, while presently on the back burner, are much stronger against him.) But it’s hard to press the point too far once you realize that (1) this is not a heinous crime; Bragg only revived this ticky-tack case once Trump announced he was running for president, and he had to inflate it into a felony in part simply to keep it from falling afoul of an already-lapsed statute of limitations; (2) he realized he had an opportunity to record a conviction against him before Election Day.

 

So if Donald Trump got actual jail time for this — not for January 6, not for retention of classified documents, not for suborning fraud in Georgia, but for paying off Stormy Daniels — then I tell you bluntly: The fix is in. And not just in, but meant as a symbolic boot stamping on the face of the American public. The reason I consider it unlikely is precisely because of how insanely unprecedented it would be were it to happen, and not in the “I can’t believe we were stupid enough to nominate a guy who just got sent to prison for the remainder of the campaign” way. (Sadly, I can believe we were stupid enough to do that; just wait until Matt Gaetz tries for statewide office.)

 

Rather, I mean it in the “I can’t believe they just gave jail time to a first-time nonviolent offender in a victimless crime that had to be inflated from a minor misdemeanor into a felony via novel legal construction.” Because that, my friend, will be a thing that has never happened before! Under no plausible circumstances would any person not named Donald Trump, with Donald Trump’s past and potential future, be sentenced to prison time for these offenses.

 

Donald Trump’s sentencing hearing is set for July 11 — delightfully, a mere four days before the Republican Convention is set to begin in Milwaukee. It will begin under a cloud in any event, but let us hope and trust that it does not begin without its party’s nominee a free man. Right now, though, my only assurance to you is this: At least there’s always that first debate on June 27.