Sunday, 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 is a first-time offender, and the myth that he is non-violent.
Today I’m going to explore a number of factors in sentencing that apply to defendants generally and how they apply to this defendant, followed tomorrow with the final installment on the judgment.
Now that we’ve looked at some of the myths promulgated by Trump’s apologists, let’s look at specific factors that suggest the severity of the sentence he deserves. This list comes from the “Prosecuting Donald Trump” podcast, 11 June 2024, by Andrew Weissman and Mary McCord.
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.
Was the defendant a leader in the crime or just a participant?
Clearly, Donald Trump was the leader in this conspiracy. We have two good reasons to believe this.
First, the jury found him guilty on all counts. To do that, they needed to believe he was behind the scheme to falsify the records.
Second, he was powerful. Before the election, he was running a campaign with millions of followers and millions of dollars. After the election, he was President of the United States. No one else involved had even a fraction of the power he possessed. The jury found there was a crime. Given his power, he was leader of the conspiracy to commit that crime.
Was the crime over a period of time or just spur-of-the-moment?
A crime over time is much more serious than one committed on the spur of the moment. The latter might just be bad judgment. The former was planned, and the perpetrator had opportunities to back out.
This was a premeditated crime that shows consistent intention over a period of months. A crime that takes place over a year or more is a very serious crime, because it shows the perpetrator was completely comfortable committing it.
Was there a breach of trust?
For example, is this person in a professional position where the public expects them to be trustworthy? Are they, for example, a doctor, a lawyer, or a politician?
The main goal of this crime was to deceive the public. And it makes people cynical about the system in multiple ways:
- Because this was a trial of a politician, people can easily believe that it was political. This weakens public trust in the justice system.
- It undermines our elections. It suggests that we can’t trust candidates for public office, that they aren’t honorable.
- It gives people even less faith in the media. Here, a candidate colluded with a national publication to deceive the public. (And, recently, it’s come to light that David Smith, executive chairman of Sinclair Broadcasting, agreed with Donald Trump to put favorable coverage about him out through his companies. So, the deal with National Enquirer was probably not a one-off.)
Trump supporters often claim that the fraud he’s committed is a “victimless crime”. The deal he got with the banks because he overstated his assets, for example, they claim didn’t harm the banks or anyone else.
But, actually, all this fraud undermines our entire society, demotivating people from voting and other participation. It gives others permission to commit fraud. Here we see a number of ways his deception hurts the public by undermining the courts, the political system, and the media.
Did the defendant accept responsibility and show remorse?
In order to appeal, Donald Trump has to maintain that the trial was flawed. However, his behavior goes well beyond what he needs to plausibly maintain his innocence. He could maintain he was innocent without claiming the trial was rigged and everyone involved is out to get him.
He could even say that he believes these records were wrong by mistake, he’s sorry this happened, and he’s prepared to make it all right by paying for what he owes in taxes. It’s not beyond him to lie, a little.
Instead, he’s using his political power to obstruct justice.
How serious was this crime in comparison with other crimes?
And, beyond that, is the sentence proportional to what others would reasonably get?
Michael Cohen got a three-year sentence in prison for essentially the same crime, and he wasn’t even the person who presided over it. The further away from three years of incarceration Trump’s sentence gets, the harder it is to believe Trump got an appropriate sentence.
This is a very serious crime. It is part of a pattern of behavior: Consistent attempts to cheat others and the system generally. Persistent attempts to undermine our system of justice. A forceful attempt to throw the election (followed by another attempt in 2020 and subsequently to overthrow the results of that election). A pattern of deception about the elections.
Deterrence
Another issue in sentencing is deterrence. What is necessary to deter this criminal and other criminals from perpetrating this felony in the future?
First, Donald Trump is not easily deterred by monetary judgments. We can see this in the E. Jean Carroll cases. In the first case, she was awarded $5 million. But that didn’t deter Donald Trump from continuing to defame her. Later, she was awarded over $83 million. That did appear to shut him up.
So, the amount of money needed to deter this defendant from recidivism is between $5 million and $83 million. But the maximum fines in the Manhattan case can’t come anywhere close to even $5 million.
That means that only incarceration will be a sufficient deterrent for this defendant.
It is possible that other similarly situated criminals would be deterred by a monetary fine. So, it is conceivable that the maximum fine stipulated for this offense might be sufficient to deter others in the community from following in Donald Trump’s footsteps.
But this has to be a deterrent to both the current offender and future potential offenders.
So, it must include prison time.
In the next and final installment of this series, at 4:00 PM Pacific Time tomorrow, I’m going to explore the judgment, and why I believe he must be sentenced to imprisonment, as well as discussing the length and form that imprisonment should take.