In attempting to predict the punishment Judge Juan Marchan will impose on Donald Trump, we are confident of one conclusion: If the past is any indication, the punishment will not be motivated by fairness or justice. It will be the harshest punishment Judge Marchan can impose without risking overturning the sentence or potentially helping Mr. Trump’s electoral prospects.
Vengeful Sentence Sentencing could take many forms short of actual prison time: Sentencing Trump, a first-time offender, to prison for minor bookkeeping violations would ensure the sentence is overturned and a furious outcry from independents. (Related article: Alan Dershowitz: A prosecution so unjust it would make Joseph Stalin blush)
But one possibility would be for the judge to impose a substantial prison sentence, such as two years, and then suspend the sentence. A suspended sentence would send a message that the judge deemed the crime serious and deserving of prison time, but that, given the unique circumstances of the case, it would be inappropriate to impose an actual prison term on the presidential candidate.
A harsher option would be to impose a prison sentence and postpone its execution until after the election. Because this is a state, not a federal, case, Trump cannot pardon himself or commute the sentence, even if he is elected. Only New York state authorities can bring about that outcome.
A third option would be to impose a heavy fine and probation, leaving Trump free under certain conditions. The legality of such a sentence would depend on the terms and their impact on the campaign.
Sentencing is scheduled for July 11. Under New York law, appeals cannot begin until after the verdict has been entered. But there is no justification for delaying so long. It is true that New York law requires a pre-sentence report to be filed before sentencing. But the judge probably already knows the sentence he or she is likely to hand down. He or she may have determined the sentence before it is entered. So there is no justification for delaying the sentencing and the appeal.
It is important that this appeal be argued and decided before the election so voters can make a more complete assessment of this case. Right now, all voters know is a flawed outcome with partisan prosecutors, a polarized judge, and a biased process with a jury drawn primarily from anti-Trump voters. The public has a right to know how the appeals court will rule on this case before it affects their vote.
In the editorial showdown, Two New York Times critics As to whether a prison sentence would be appropriate, the authors made a fundamental error: they assumed that Trump had been convicted of election fraud. They reached this conclusion based on the fact that the judge instructed the jury that, to convict someone of a felony, they must conclude that the bookkeeping entries were intended to facilitate or conceal another crime, one that they could have considered.
But even now, a week after the verdict was delivered, it’s still not clear what crime the jurors intended to commit: some may conclude that the intended secondary crime was tax evasion, others that he was simply trying to hide the bookkeeping entries themselves, and still others that he was attempting some form of election fraud.
The answer to the judge’s multiple-choice test remains to be seen, as the jury was not required to reveal the basis for its verdict. Nor did the jury have to find the intended second offense beyond a reasonable doubt, merely by a preponderance of the evidence.
Therefore, it would be wrong and unfair to base a verdict on the assumption that the jury unanimously found that Trump conspired to steal the election. This does not mean that a judge will not interpret an ambiguous verdict unfairly and rule on it, which is entirely possible.
Either way, Judge Marchan has many sentencing options, and while we cannot predict which one he will choose, judging by his sentence, he is almost certainly motivated not by fairness or justice, but rather by the “go after Trump” attitude that has dominated this case from start to finish.
Alan Dershowitz is a professor emeritus at Harvard Law School and author of “The War on the Jews: How to End Hamas’ Brutality.” This article has been republished from the author’s Substack page, here.
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