GUILTY!

Get the Point!

Earlier today, former President Donald Trump was convicted of 34 counts of falsifying business records to conceal his prior sexual tryst with porn star Stormy Daniels during the 2016 presidential election. The Manhattan jury deliberated for two days following a six week trial that featured 20 witnesses, including Ms. Daniels and his former personal lawyer, Michael Cohen.

Guilty as charged…

The question now turns to whether the former president will spend time in a New York State prison when he returns to be sentenced by Judge Juan Merchan on July 11th? 

To that query, do note that each of the 34 felony charges carries up to a $5,000 fine and four-year prison sentence. "Up to" is critically important language, mind you, because Judge Merchan has judicial discretion to go lower than that on each count. 

But will Judge Merchan exercise such discretion?

The lawyerly answer is that "it depends" on a number of factors, including Mr. Trump's age (77), physical/mental health, lack of prior criminal history, and the fact that these are white collar crimes that don't involve bilking a third party or government entity, like the IRS, of any funds. Equally crucial in any sentencing decision is the fact that Trump IS a former president, and the Judge will consider the reality that placing him into a dank state prison with multiple Secret Service agents as his guards poses a logistical nightmare for New York State prison officials and the Secret Service. 

Based on the aforementioned factors, I can safely state that Mr. Trump's lawyers have more than enough going in their favor to save their client from going to prison.

On the other hand, Trump, to put it mildly, has been an extremely difficult and disrespectful defendant. From multiple violations of Judge Merchan's gag orders, including direct disses of the Judge and his family, disses of Prosecutor Alvin Bragg, and profane outbursts and sleeping binges in open court, Trump very well could find himself being sentenced to some prison time, even if minimal, due to his lack of decorum and respect for the legal process.

Will Trump have an opportunity to appeal?

Yes, each criminal defendant is afforded an opportunity to appeal the judgment and sentence in their case, and like any other case, Trump's appeal cannot commence until after he is sentenced in July. 

During sentencing, if Judge Merchan chooses to hit Trump with a prison term, his lawyers will argue for (and likely receive) an appeals bond, one that will allow him to remain free until all appellate relief is exhausted in state (or collateral attacks in federal courts). Appeals can often take a year or more, so this case and conviction will be around for a long time—even if Trump wins the presidential race in November. 

Staying with that line of reasoning, if Trump does win in November and is inaugurated next January with a prison term hanging over his head like the Sword of Damocles, if he loses on appeal, could a state court imprison a sitting U.S. President? My gut says "no," but honestly, this is such uncharted legal territory that I cannot accurately predict or speak on this issue at this point. 

Judge Merchan may seek to avoid the above imprisonment conundrum altogether by sentencing Trump to house arrest or probation—fully knowing that Trump would forever be branded a convicted felon—while allowing the voting public to decide whether to elect a convicted felon on active probation to the highest political office in the land. Stay tuned!

In closing, I admit that I am rather surprised that the jury returned a guilty verdict on all 34 charges! In the 200 or so felony cases that I tried, the longer a jury deliberated, the greater the likelihood of a hung jury leading to a mistrial—or a "not guilty" verdict in favor of the defendant. Knowing that two of the 12 jurors were lawyers, I figured that having two sets of legally trained eyes and ears was leading to a pedantic parsing of the witness testimony and jury instructions that could end in Mr. Trump's favor on some of all of the charges.

Artistic rendering of Mr. Trump moments after he was pronounced guilty as charged…

But my suspicions were unfounded and now, Trump has made history once again, this time as the first former president to be convicted in felony court! Be sure to check out the Hobbservation Point in the months ahead to find out what happens next!