Republican senators warn judge against sentencing Trump to prison

(The Hill) – Senate Republicans are warning New York Judge Juan Merchan not to sentence former President Donald Trump to prison or house arrest or take any other action that could disrupt the ability of the likely Republican Party nominee to campaign before the November election.

It may take months for Trump to appeal his conviction on 34 counts related to falsifying business records and legal experts do not expect the conservative-leaning US Supreme Court to intervene for help.

That means Trump's fate rests largely with Merchan, who could choose sentences ranging from prison and house arrest to probation and community service.

Merchan, who has received favorable reviews from legal experts for his careful handling of the case, will sentence Trump on July 11, days before the Republican National Convention in Milwaukee.

Republican senators acknowledge that legal experts believe it would be highly unusual for Trump to be sentenced to prison for a Class E felony and would most likely be allowed to remain free pending his appeal in higher courts of State.

But they are worried about what might happen because Merchan exercises great discretion over the terms of the sentence and they believe he has tilted the case against Trump's team.

Sen. John Cornyn (R-Texas), ranking member of the Senate Judiciary Committee, said it would be a “further abuse of power” to incarcerate Trump or sentence him to house arrest.

“I am very troubled by what I see in the way the courts have been weaponized,” he said. “Previously, certain American institutions, namely the FBI, the Department of Justice and the courts, were considered off-limits to overt partisan politics, but unfortunately this has changed and it is not for the better.”

Republican senators warn that any sentence that impacts Trump's mobility or his ability to communicate with voters could seriously undermine voters' confidence in the fairness of the 2024 election.

Legal experts predict that Merchan will not sentence Trump to prison right before the convention, but some Republican lawmakers say that scenario is possible given what they have seen so far about the prosecution and trial.

Sen. Ted Budd (R-N.C.) said it would be “insane” for the judge to sentence Trump to prison or house arrest.

“But when you see the conviction and the rules that he put on the jury, it's completely unfair, it's unconstitutional and I wouldn't let him have anything at this point,” he said of Merchan.

Budd said a harsh sentence “would only strengthen Americans' resolve to support President Trump.”

Judiciary Committee member Sen. Thom Tillis (R-N.C.) was certain that Trump would never be convicted by the Manhattan jury, and now he doesn't know what to make of the prospect of the likely GOP nominee for president ends up in prison before election day.

“With this process, anything is possible,” he said of a prison sentence or home confinement.

Tillis said that if the judge restricts Trump's ability to campaign, he will have to show that the sentence does not diverge from that of other defendants convicted of the same or similar crimes.

“Unless they can find examples fairly quickly of similar cases resulting in prison sentences, this will only add fuel to the fire.” [District Attorney] Bragg's decision is politically motivated” to seek prison time, he said.

Trump was convicted of 34 counts of falsifying business records, a class E felony, and faces up to four years in prison on each count, although most legal experts say the judge could not sentence him to more than 20 years in prison.

Trump's legal team would do everything possible to delay any sentencing until he completes his appeals, which would likely drag on until after Election Day.

An analysis by Norm Eisen, a senior fellow in governance studies at the Brookings Institution, found that only one in 10 cases of first-degree falsification of business records in New York resulted in prison time. Its findings were first published in the New York Times.

Some New York legal experts note, however, that Merchan, the judge, has a reputation for being tough on white-collar criminals.

Trump warned over the weekend that the public would reach a “breaking point” if they were imprisoned or confined to their homes, acknowledging that “it could happen.”
“I think it would be difficult for the public to accept,” he said.

Tills said a harsh sentence could help Trump politically because it would further infuriate his supporters.

“Now it seems like he’s really being treated punitively by the courts,” he said of his time in prison. “It would really damage the credibility of the case presented in the first place,” he said.

Some Republican senators predicted that the Supreme Court would overturn any criminal conviction of Trump.

“I think ultimately everything will be overturned by the Supreme Court,” Sen. Rand Paul (R-Ky.) said last month. “I think a lot of these cases [will] and the Supreme Court finally says enough is enough, we are not a banana republic.”

Senator Ted Cruz (R-Texas), a member of the Judiciary Committee, predicted last year that “the end result of any conviction of Donald Trump based on this indictment would, in all likelihood, be a reversal before the Supreme Court of the United States.

But legal experts say they don't expect the nation's highest court to be involved in a state criminal case, emphasizing that Trump's conviction raises no obvious constitutional concerns.

“The most likely answer is that the Supreme Court will do nothing,” said Ilya Somin, a law professor at George Mason University whose research focuses on constitutional law.

“There is no procedure for a case like this to go directly from a state trial court to the federal Supreme Court, there simply isn't one,” he said. he declares. “At least so far, there isn't really a question of federal law here. You can try to concoct one, but that's another obstacle to getting the case to the Supreme Court.

“At the very least, I think the federal Supreme Court will not do anything until the case goes to the New York State Supreme Court or whatever the highest court in New York is that will make a decision,” he said.

Barbara McQuade, a law professor at the University of Michigan who specializes in criminal law and procedure and previously the U.S. attorney for the Eastern District of Michigan, said there is no chance that the state Supreme Court -United States intervenes to overturn Trump's conviction or to avoid a trial. prison sentence before the elections.

“I see no chance that the United States Supreme Court will intervene in convicting Donald Trump before the election. He must exhaust his appeals in the New York State courts, which will take more than a year,” she said.

“Even then, the case would only reach the Supreme Court if there was a question of federal statutory or constitutional law,” she noted.

But some Republican senators say it would be necessary for the U.S. Supreme Court to intervene before Election Day.

“It would be unprecedented, but look at the response we've already seen with conviction, with fundraising numbers we've never seen before,” said National Republican Senatorial Committee Chairman Steve Daines (R- Mont.) about what the public response would be. be to put Trump behind bars.

Asked about the role of the U.S. Supreme Court, Daines said: “We should not allow a puppet court in New York to interfere in this election. »

“The American people should be the jurist,” he said.

Sen. Chuck Grassley (R-Iowa), former chairman of the Judiciary Committee, said the Supreme Court does not need to get involved in Trump's criminal case now, but he argued that it could do so if the appeals threaten to drag on beyond the elections. .

“Not at this point,” he responded when asked whether the U.S. Supreme Court should review the conviction. “It could be that if other appeals processes get bogged down and we can get an answer beyond the elections as to whether they are fair or not, then I think there could be a reason for the Supreme Court to intervene.”

Grassley said “everyone I've heard talk about it” thinks a prison sentence is very unlikely, given that this is Trump's first criminal conviction.

But he thinks Trump could still win the election if he was locked up on Rikers Island.

“It would probably help him get re-elected if he’s behind bars,” he said.