Donald Trump is the first former president convicted of a crime and now he could be the first one sent to jail or prison.
Trump was found guilty of 34 felony counts of falsifying business records, opening up the possibility that he could be incarcerated.
Not only is Trump the first former president be convicted of a crime, he is also the presumptive Republican nominee lined up for a likely rematch with President Joe Biden in November.
Even though jail time is on the table for his conviction, he is expected to appeal the jury’s decision. Legal experts told USA TODAY any jail or prison sentence likely won’t take effect until after his appeal plays out, pushing it past the November election.
Here is what to know about a possible incarceration sentence:
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Can Trump go to prison?
Yes. Each felony count of falsifying business records − elevated to a felony because prosecutors proved the purpose was to commit or conceal another crime − carries a maximum sentence of four years. However, New York caps such sentencing the type of felonies Trump faced – Class E felonies – at 20 years.
Some New York litigators and legal experts told USA TODAY that Trump is likely to face only probation.
“With a defendant who has no prior criminal record, my absolute expectation would be a sentence of probation,” Mitchell Epner, a New York litigator with decades of experience, said ahead of the trial.
Others said jail or prison time is very much on the table, but likely under four years and potentially limited to months.
Norman Eisen, a Brookings Institution senior fellow who served as special counsel to the House Judiciary Committee during Trump’s first impeachment, co-authored a report looking at sentencing for other defendants with no criminal history who were convicted of falsifying business records in New York.
Eisen noted one construction executive was sentenced in 2015 to spend two days per week in jail for a year for falsifying records to hide payments in a bribery scheme. In 2013, two corporate executives were sentenced to between four and six months of jail time for falsifying records to misclassify their salaries as expenses under their employer’s larger bribery and fraud scheme.
“This is a case that does not involve any physical violence, and it doesn’t – there’s not sort of a ‘named victim,’ so to speak – and so the court is going to take that into consideration,” Anna Cominsky, who directs the Criminal Defense Clinic at New York Law School, told USA TODAY.
Cominsky added, however, that it will “be very dependent on – and also very interesting to see – what the prosecutor asks for.”
At a press conference following the verdict, Manhattan District Attorney Alvin Bragg declined to preview what he will recommend to the judge.
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When will Trump be sentenced?
Judge Juan Merchan will issue Trump’s sentence in a July 11 hearing. Merchan instructed Trump’s defense team to file any post-conviction motions by June 13, and told the prosecution to respond by June 27. Those filings could include arguments from both sides about Trump’s sentence.
Defendants are sometimes “remanded” pending sentencing, or kept in custody while they wait for their sentence.
But legal experts told USA TODAY that is unlikely in this case.
Can Trump bring the Secret Service to jail?
Even before the conviction, logistical questions about Trump going to jail came up when he repeatedly violated a gag order restricting his public comments on witnesses and jurors.
Among those questions is how the Secret Service will continue to work with Trump. He receives around-the-clock protection as a former president, which no judge has previously had to consider in a sentencing.
“If I were the judge − and I don’t know what a judge would do in this case − I would reject out of hand the concept that because he was once president, and because as a matter of policy the Secret Service guards former presidents, that therefore he can’t go to jail,” said John Moscow, a New York lawyer who spent 30 years in the Manhattan District Attorney’s Office.
Moscow told USA TODAY ahead of the trial that the judge could get creative – for example, order the former president to stay in a hotel wing or military base.
Merchan previously threatened to jail Trump if he continued to violate a gag order in the case, even as the judge acknowledged concerns about Trump’s Secret Service protection.
“There are many reasons why incarceration is truly a last resort,” Merchan said on May 6 of the trial. While he said he didn’t want to jail Trump over the gag order, he would “if necessary and appropriate.”
