Earlier this week, I published an article exploring myths around the Donald Trump criminal trial in Manhattan. This includes the myth that the trial was politically-motivated, the myth that he couldn’t get a fair trial in Manhattan, the myth that he is a first-time offender, and the myth that he is non-violent. In the second installment I explored a number of factors in sentencing that apply to defendants generally and how they apply to this defendant.
NOTE: Due to interference by the Supreme Court, sentencing for the defendant, originally scheduled for 11 July has been delayed until September. However, he’s still guilty, so the scheduling of his sentencing doesn’t change any of the facts or analysis in my articles.
Today, I’m going to opine on the judgment itself. How much prison time is appropriate? Why does he deserve this? What is the one factor mitigating against a prison sentence? And how can he be “imprisoned”, given the practical implications?
I’m not a judge, so I have no professional experience to cite. But I have an opinion. As a member of the public, I’m entitled to an opinion.
I believe Donald Trump should be sentenced to at least two years of prison time. My understanding is that the judge must give him a range if he’s to sentence him to more than one year in prison. He could pick a definite number for less than a year, but for more than a year, he has to cite a range.
An appropriate range is two to four years. That would mean he would serve at least two years, although he might be paroled early for good behavior.
Who am I kidding? Good behavior? Donald Trump?
Okay, theoretically.
I think he deserves at least two years. One year for falsifying documents. He had to know he was breaking the law because of the nature of the scheme. The fact this was cobbled together to reimburse Michael Cohen for what he’d paid on Trump’s behalf and structured over months means this was an intentional scheme to hide the nature of the payments. And the structure suggests strongly this was done to avoid taxes, specifically by recording personal payments as business payments.
The other year because he used this as part of a scheme to defraud the public. The fact he had Cohen pay Stormy Daniels and then reimbursed him means he knew her story would probably terminate his candidacy.
It isn’t just that he cheated Hillary Clinton out of the presidency. It implies that he has no capacity to be straight with the public. We are also seeing this in the documents trial, where he was caught red-handed and still lies to the public about it. And it is blatant in the election denial trial in DC, where he went to extraordinary lengths to use private means and public powers in an attempt to stop democracy in its tracks.
This is part of a pattern of criminal behavior.
So, I think a minimum is two years of incarceration. One for fraud, the other because he used the fraud to cover for other crimes. (Other crimes: election interference and tax fraud.)
Why
Why does he deserve incarceration for this set of Class E felonies?
- He’s a hardened criminal. He is head of a violent gang that is dangerous to anyone connected to the criminal justice system. He is a violent criminal, who will use others to injure and attempt to murder anyone who opposes him.
- These crimes are part of a life-long pattern of fraud. He’s been adjudicated in multiple instances of causing various organizations to commit fraud. In fact, his pardon of various criminals that supported him while he was President is evidence of his contempt for the justice system and his determination to undermine it. He’s a “first-time offender” in name only.
- He is completely impervious to correction. He has an almost certainty of recidivism. He’s shown in multiple instances he won’t follow the law, even if he’s caught and pays a penalty. He can’t be deterred from committing this or similar crimes. He can only be punished for his offense.
- A monetary sentence is completely inadequate. It has no real meaning to the defendant, who will just use someone else’s money to pay it.
For these and other reasons no other penalty will do for this set of crimes other than a prison sentence.
Why Not?
Why would anyone give Donald Trump less than a couple years of prison for this group of felonies?
I believe there’s only one reason: Fear. Someone might reasonably fear personal retribution against them or the destabilizing effect on society.
I can’t speak to the impact of personal fear in this context. I can’t say how much that fear might weigh on the judge passing judgment. I can only relate it to my own experience of fear.
I’m occasionally afraid of things. When I believe my safety or life is threatened, it makes me physically ill. I may not want to do the right thing. I only do the right thing because it is the right thing. It’s hard.
When someone is personally threatened it takes real courage to overcome that. I respect that courage. We just observed the anniversary of D-Day. I’m not sure how the troops who landed in Normandy that day ever mounted the courage to do that. I think it takes enormous courage to become a soldier, a sailor, an airman, or a marine, let alone go into battle, especially against prepared defenses. This is incremental heroism: one heroic act following another.
I am calling on a judge to do something for which he might reasonably fear. And I respect his decision, which will require courage regardless of the decision. If he decides to pronounce a sentence of incarceration, that is going to be in the face of a real threat.
There’s also the fear that putting a politician in prison, when he has an enormous political following, could result in enormous societal consequences. What of that?
I believe this country is strong. We spent nearly two hundred fifty years building a stable society based on the rule of law. Imperfect though it may be, I believe it can stand up to a prison sentence for one of its political leaders.
Especially one who got and is getting due process under law.
So we, as a society, should have the courage to do this. We should have “the courage of our convictions”.
I’m convinced this is the best way forward.
Forms of Incarceration
A number of people have discussed whether Donald Trump could be incarcerated in the general prison system of New York. He has Secret Service protection, and that could complicate and be complicated by putting him in a penitentiary.
It’s unfortunate he was able to pardon Paul Manafort, Roger Stone, Michael Flynn, Stephen Bannon, George Papadopoulos, and his entire entourage of fellow criminals. We could have just built a wing at, say, Otisville, for him and his co-criminals, and put them all there. (Transferring them from the federal prison system under some kind of lend/lease program or contract prison arrangement.) Sadly, that is not to be.
Alternatively, he could be put under house arrest. This has some merit. For one thing, it is probably less costly to the state than putting him up in the big house. But I have some caveats.
I would not want to see him go to Mar-a-Lago or even Bedminster. That’s way too cushy. And it is outside the State of New York.
If he’s going to get house arrest, my suggestion is that he be confined to his apartment in Trump Tower. For one thing, this is in Manhattan where the crime occurred and where it would be relatively easy for New York authorities to keep tabs on him.
For another, he could look out the window and see where his freedom has been taken away.
This presupposes he can still pay rent there. But given his stake in his online scam site, he could be worth billions for many years to come. So, probably not a financial problem.
I think this is the best option. Confine him to his home on whatever floor of Trump Tower until he gains parole.
Summary
Look. Donald Trump is a hardened criminal. He thinks he is above the law. He doesn’t believe he can be judged by a jury of his peers because he doesn’t believe he has peers.
The only question is whether our justice system is bigger or smaller than him.
I’m betting it is bigger. We’ll see.
Thank you for reading. I’m looking forward to your comments and the final outcome of the poll.