It’s up to the jury to decide if Donald Trump is guilty or not. If he’s acquitted, that’s the end of the trial, and prosecutors can’t charge him again for the same crimes. But if the jury comes back with a guilty verdict, nearly everything about what happens next would be up to Judge Juan Merchan.
The experienced New York Supreme Court judge who has presided over Trump’s Manhattan trial for six weeks will have several thorny decisions before him including whether he should send a former President to jail or probation, and if any sentence should be postponed until after Trump has exhausted his appeals. Every decision would reverberate across the political landscape and, depending on the timing, could greatly affect the election in November.
That’s a lot of power vested in one person. Here’s a look at the decisions that Merchan would face involving Trump’s future after a conviction.
Revisiting Trump’s bail conditions
The first decisions would come almost immediately after jurors notified the judge they had found Trump guilty. After that, the jury’s duties would be complete and Judge Merchan would dismiss them. It would be up to jurors to decide if they want to talk to reporters or the legal teams after the case about why they voted the way they did.
At that point, prosecutors would have an opportunity to ask the judge to increase Trump’s bail, a common request that is meant to act as a guarantee that a newly convicted defendant will return to court for the sentencing hearing and any other court requirements related to the case. In some trials, prosecutors argue that a defendant who has been found guilty presents an increased risk of fleeing and would ask the judge for stricter bail terms, including being remanded to jail until the formal sentencing hearing. Trump has posted a $175 million bond in the Manhattan fraud case. It is unlikely Merchan would change the terms of Trump’s bail.
The sentencing hearing
Even scheduling Trump’s sentencing hearing will be politically fraught for Merchan. The judge would be able to call a sentencing hearing as soon as July. The Republican National Convention, where Trump is set to formally accept his party’s nomination for the presidency, is scheduled for the third week of July in Milwaukee.
In the weeks leading up to the sentencing hearing, if standard procedures are followed, Trump would meet with a probation officer who would interview Trump and prepare a written report with a recommended sentence. The probation report would be sent to the defense attorneys, the prosecution and the judge. And Trump’s legal team would have a chance to suggest sentencing terms and supply letters of support for Trump.
But the actual sentence would be up to Judge Merchan to decide, and he would have a range of options before him. He could decide not to punish Trump at all by awarding him time served—essentially deciding that going through the trial was punishment enough, and that there was no further need for penalties. He could give Trump a “conditional discharge” with a requirement like community service. Or he could put Trump on probation with terms that he had to abide by in order to avoid jail time. Or Merchan could decide to send Trump to prison.
“There is a huge delta politically between a jail sentence and a sentence of probation. That’s going to be the most agonizing choice the judge will face,” says Norman Eisen, a senior fellow in governance studies at The Brookings Institution and former counsel to the Democrat-led House Judiciary Committee during Trump’s first impeachment.
For each of the 34 felony charges Trump is facing, the New York State sentencing guidelines call for 16 months to 4 years in prison. It is unlikely that a judge in Merchan’s position would decide those sentences should be served one after the other. If the judge considered all 34 counts to be part of a single action, he could rule that the prison time be overlapping, which would mean a maximum sentence of 4 years in prison.
Should Merchan believe a prison sentence is warranted, he also has leeway to sentence Trump to a much shorter time behind bars. The New York penal code allows judges to consider prison terms of one year or less for first-time fraud offenders.
In New York, a prison term of less than a year is usually served in the city prison on Rikers Island or in the Manhattan Detention Complex, commonly known as “The Tombs.” Prisoners with sentences longer than a year are usually sent to one of the New York state prisons.
Trump could appeal both his conviction and the judge’s sentence
Trump’s lawyers are certain to appeal a conviction, a process that would likely stretch past Election Day. His first stop would be the Appellate Division in Manhattan. He could ultimately seek a review from New York’s highest court, the Court of Appeals in Albany.
In the meantime, Merchan can issue his sentence. But that decision would also not necessarily be absolute. Even if Merchan decided to sentence Trump to prison, the former President would likely be permitted to stay out of jail, pending his likely appeals. Immediately following a potential sentencing hearing, Trump’s legal team would be able to march over to the Manhattan Appellate Courthouse at 25th Street and Madison Ave. to appeal the sentencing. “Most white collar cases get bail pending appeal. That’s just a fact,” says Diana Florence, a former long-time prosecutor in the Manhattan district attorney’s office.
Merchan previously showed a reluctance to send Trump to jail
Judge Merchan has already shown that he doesn’t take lightly the idea of sending to jail a former President who is a leading candidate for the job again.
Merchan found Trump in contempt of court 10 times for violating his gag order by publicly criticizing witnesses, and fined him $1,000 for each violation. In court in early May, Merchan said that the fines clearly weren’t enough of a deterrent, and he would consider putting Trump behind bars, if prosecutors recommended it. Merchan acknowledged that the politics of such a decision were impossible to ignore.
“Mr. Trump, it’s important to understand that the last thing I want to do is to put you in jail. You are the former president of the United States and possibly the next president, as well,” Merchan told Trump. Merchan said he considered incarcerating Trump “truly a last resort” and that he worried about the people who would have to enforce his orders, including the court officers, the corrections officers and Trump’s Secret Service detail. “I worry about them and about what would go into executing such a sanction,” Merchan said.
But Merchan made clear he was willing to jail Trump if he felt it was needed to defend the judicial system and compel Trump’s respect for the process. “Your continued violations of this court’s lawful order threaten to interfere with the administration of justice in constant attacks which constitute a direct attack on the rule of law. I cannot allow that to continue,” Merchan said. “So, as much as I do not want to impose a jail sanction, and I have done everything I can to avoid doing so, I want you to understand that I will, if necessary and appropriate.”
If the jury chooses to convict Trump, Merchan will find himself facing that same decision again.
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