Delaying Trump’s Sentence May Mean a Stiffer Penalty if He Loses

 

Jonathan Alter

Sept. 6, 2024, 5:42 p.m. ETSept. 6, 2024

Jonathan Alter Contributing Opinion Writer

https://www.nytimes.com/live/2024/09/03/opinion/thepoint#merchan-trump-delayed-sentence

 

Delaying Trump’s Sentence May Mean a Stiffer Penalty if He Loses

 

While sitting in the courtroom last spring for all 23 days of Donald Trump’s New York felony trial on charges of business fraud, I was skeptical that he would ever be imprisoned for his crimes. But I now believe that if he loses in November, he’s very likely to do time in a New York State prison, alone in a special wing secured by the Secret Service. Ironically, the justice that was delayed on Friday could be justice enhanced in the future.

 

If Justice Juan Merchan — an exceptionally wise jurist — had stuck to his Sept. 18 schedule, it’s hard to see how he could have sentenced a possible future president to anything more than probation. If he sentenced Trump to prison, it would have seemed highly political, even if it wasn’t, and would have probably helped Trump. And Merchan knows that if Trump wins, any decision to incarcerate the president-elect would almost certainly be viewed as impractical by a higher court.

 

But if Kamala Harris wins, the judge — who is clearly fed up with Trump’s shenanigans — will be free of political pressure and can impose an appropriately stiff sentence. In a letter and order Friday in which he delayed sentencing until after the election, Merchan said of the jury: “Their verdict must be respected and addressed in a manner that is not diluted by the enormity of the upcoming presidential election.” When he sentences Trump on Nov. 26, he will respect that jury. Undiluted.

 

I understand why supporters of the rule of law are disappointed by those political calculations. Ideally, politics should not enter into legal wrangling. In practice, though, the Justice Department has longstanding guidelines preventing prosecutions within 90 days of a federal election. Merchan has two good reasons for applying that standard to sentencing at the state level.

 

The first is that the district attorney, Alvin Bragg, decided in August to take no position on the sentencing delays. Bragg was trying to shield himself from political fallout, and Merchan was doing the same. His decision will be better received — even by Republicans — after the election.

 

The other complicating factor is that Merchan, like U.S. District Judge Tanya Chutkan in the federal election interference case, is still moving forward with his ruling on the impact of this summer’s Supreme Court decision on presidential immunity. On Nov. 12, Merchan will probably rule that the jury that convicted Trump on 34 counts heard plenty of convincing evidence unrelated to Trump’s official duties as president and won’t throw out the verdict.

 

This will clear the way for sentencing, but if he had done it on the original date, Sept. 16, it would have been only two days before sentencing — not enough time for Trump’s defense lawyers to appeal. Depriving them of that time might have been grounds for reversal.

 

Instead, if Trump loses, we now have a clear path to prison time. Legal experts tell me Merchan has been scrupulous and thus Trump’s appeals are unlikely to prevail.

 

Democrats had hoped that a prison sentence would have kept Trump’s criminal conviction front and center going into the election. But Harris, a former prosecutor, can do that without the judge. The delay avoids a MAGA backlash that would have helped Trump narrow the gap in money and momentum.

 

Voters were always going to be the ultimate jurors. If they do their job properly, Trump may well end up in a prison jumpsuit.

 

Jonathan Alter is the author of a forthcoming book on the trial: “American Reckoning: Inside Trump’s Trial — and My Own.”