What happens if Trump is convicted in New York? No one can really say

When the judge who supervises Donald Trump’s criminal trial discovered on May 6 that Trump had violated a gag order for the tenth time, he told him that “the last thing I want to do is put you in prison.”

“You are the former president of the United States and possibly the next presidentas well,” said judge Juan Merchan, reflecting on the important weight of such a decision.

Whether to arrest the Presumptive Republican Party candidate for president is a choice Merchan could face again soon, if jurors in Trump’s “silence the money” case vote in favor condemn him. Closing arguments and jury deliberations begin this week.

What exactly would happen if the jury found Trump guilty is difficult to predict. Trump is on trial in New York state court, where judges have broad authority to determine when sentences will be handed down after convictions and exactly what they will be, according to former Manhattan district attorney Duncan Levin. This differs from federal court, where there is typically a waiting period between conviction and sentencing.

“This is done much more informally in state courts. I’ve had cases where the jury comes back and says ‘guilty,’ and the judge thanks the jury, excuses them, and says, ‘Let’s sentence the defendant right now.’ said Levin. “Obviously, everything is a little different in this case than in the typical case.”

Each of the 34 criminal counts of falsifying business records that Trump faces carries a penalty of up to four years in prison and a $5,000 fine. He pleaded not guilty.

Norm Eisen, author and lawyer, recently analyzed dozens of cases brought by the Manhattan District Attorney’s Office in which falsifying business records was the most serious charge in the indictment. It found that about one in 10 of these cases resulted in an incarceration sentence. But he also cautioned that these prosecutions often involved other charges and noted that the dynamics at play in Trump’s case make his sentence particularly difficult to predict.

If Trump is found guilty, Merchan will have broad discretion in determining a punishment, including sentencing Trump to probation or house arrest.

Levin said the option of confining Trump to his home, followed by a period of probation, could be attractive to Merchan, who has repeatedly indicated he is concerned about limiting a presidential candidate’s ability to speak freely. Such an option would allow Trump to give interviews and access social media from his home.

From the day Trump was first indicted on April 4, 2023, Merchan said he was reluctant to interfere with Trump’s ability to campaign.

“He is a candidate for president of the United States. So these First Amendment rights are extremely important, obviously,” Merchan said that day.

And on May 6, he weighed in more broadly on the additional people who would be burdened by Trump’s arrest.

Merchan called incarceration “truly a last resort for me,” saying, “I also worry about the people who would have to carry out this sanction: the court officials, the corrections officers, the Secret Service detail, among others.”

Still, that day he warned Trump that prison is not out of the question.

“I want you to understand that I will do so if necessary and appropriate,” Merchan said.

It’s a possibility that state and federal agency officials have already begun preparing for, according to a New York prison source, who said the Secret Service has met with local prison officials. As a former president, Trump is entitled to Secret Service protection for the rest of his life, wherever he is. Behind bars, prison officers would in turn be responsible for protecting agents assigned to Trump.

Where Trump might serve any jail or prison time is one of many factors that remain up in the air. Shorter sentences can be served at the city’s Rikers Island Jail Complex, which has two wings that are typically used for high-profile or infamous inmates. (Neither, of course, has ever detained someone who comes with their own security team.)

Officials should have a plan in place, just in case, Levin said.

“He could be detained on the spot,” Levin said.

Katrina Kaufman contributed reporting.