Should Trump be sentenced to prison? Two opposing visions.

Now that Donald Trump has been found guilty on 34 counts, his sentencing hearing will take place on July 11. Below are two legal experts weighing in on the crucial question of whether Mr. Trump should be sentenced to prison.

The case for prison time for Trump

Having witnessed every day of Donald Trump's criminal trial for falsifying business records to cover up a sex scandal that threatened his presidential campaign, I firmly believe the former president should be sentenced to incarceration.

I am a lawyer, not a judge, but I have practiced criminal law for over three decades. Under New York law, the sentence should be based on the seriousness of the crime – and the 34 offenses for which Mr. Trump was convicted are extremely serious. To convict him of falsifying a business record, the jury had to determine that he intended to commit, aid or conceal a second crime by making or causing false entries.

Jurors had only one option for this second offense. It involved the payment of hush money to conceal damaging information, “a criminal scheme to corrupt the 2016 presidential election” under the New York penal code. Joshua Steinglass, one of the prosecutors, emphasized the importance of this in his closing argument, telling jurors: “Democracy gives people the right to elect their leaders, but that relies on the principle that voters have access to precise information about the candidates. Mr. Trump sought “to deny that access, to manipulate and defraud voters, to throw smoke and mirrors in their eyes in a coordinated way,” Mr. Steinglass said.

Because the legitimacy of our entire system of government rests on free and fair elections, this offense deserves punishment.

Sentences must take into account the results obtained in comparable cases. When Judge Juan Merchan sentences Mr. Trump, he will do so in the context of many other defendants who have been convicted of this crime. My research for a book on the case, “Trying Trump: A Guide to His First Election Interference Criminal Trial,” included examining nearly 10,000 prosecutions for falsifying business records in New York since 2015. In the most serious of these cases, approximately 10% of this total, incarceration was imposed. Mr. Trump's attack on our democracy is as serious, if not more serious, than any of these other attacks. My research also showed that first-time offenders like Mr. Trump are not exempt from prison time, nor should they be if, like the former president, their offense is serious enough.

Furthermore, Mr. Trump has shown no contrition. On the contrary, he was extremely provocative. Almost every day, he left the courtroom to appear before a gathering of journalists in the courthouse and spread disinformation about the case as well as slander the judge; Manhattan District Attorney Alvin Bragg; and others in the most scandalous and inflammatory terms. On ten occasions, Mr. Trump defied the silence imposed by the judge to protect witnesses and jurors. Under New York law, all of this can and should weigh in favor of a prison sentence for Mr. Trump.

The court may also take into account the convictions for defamation, sexual assault and civil fraud already handed down against him. This is permitted under the principle that the defendant's history and character affect his or her sentence, and this odious history suggests that a prison sentence is warranted.

Finally, sentencing is not only about accountability but also about deterrence. A prison sentence would send a message to Mr. Trump and his supporters that there is no escaping plots to interfere with an election. Because we know that Mr. Trump is facing charges related to attempted election interference in 2020 – the election he still claims to have won – and is once again running for president, a criminal conviction and the deterrence it can have are particularly important for justice and as a means of defence. wake-up call for the American people.

-Norman Eisen

The arguments against prison for Trump

Donald Trump was convicted of a serious crime: 34 counts of falsifying business records to illegally influence the 2016 election. Even though the law under which he was convicted allows for imprisonment, I would not send him to prison.

I do not have the information that Judge Juan Merchan will have at sentencing – the pre-trial report on Mr. Trump prepared by the probation officers and the arguments of the prosecution and defense. My conclusions are based on the public record, my years of experience as a federal judge and criminal defense attorney, and my decades of teaching sentencing at Yale and Harvard Law Schools.

Because first-degree falsification of business records is a Class E felony under New York law, the possible punishment for each count ranges from probation to four years in state prison, a fine or a period of supervised probation that ends with the charges. be fired as long as Mr. Trump has fully complied with the conditions of probation. New York judges have discretion to choose a punishment within legal limits.

A starting point in considering sentencing is to look at the treatment other defendants received who were convicted of the same or similar offenses. Although defendants convicted of this offense can be sentenced to prison, most are not, especially first-time offenders, as is the case with Mr. Trump. Certainly, this case is unique. This involved more than falsification; these were efforts to interfere with an election.

Some have pointed to the fact that Mr. Trump showed no remorse after the verdict. Anyone who has an appeal pending – as they will have after being convicted – cannot admit the charges. His confession would prevent him from defending himself at a second trial if that conviction were overturned.

But not expressing remorse for the crime is one thing. Attacking the jury is another. Prosecutors, like Manhattan District Attorney Alvin Bragg, are elected officials who exercise discretion when bringing charges. These are fair targets for an accused. Yet his decision was tested by a jury of 12 neutral citizens who spent six weeks of their lives listening to the evidence, against a standard of proof beyond a reasonable doubt, in an adversarial system in which Mr. Trump had virtually unlimited resources for hiring. lawyers. There is no doubt that his attacks reflect a fundamental lack of respect for the rule of law, which leads to imprisonment.

I would also consider Judge Merchan's findings for contempt. Mr. Trump deliberately ignored the court's rules — behavior that strongly suggests he will not follow other laws.

As for the other pending criminal charges in the District of Columbia and Georgia related to the January 6 insurrection and the charges in Florida regarding the illegal retention of classified information, I will not rely on them. Federal law, like New York state law, allows but does not require judges to consider charges that have never been tried by a jury. I chose not to consider the pending charges while I was on the bench. I thought it was unfair. The civil ruling by Judge Arthur F. Engoron in February that Mr. Trump engaged in repeated and persistent business fraud is a narrower question because it was a civil case with a lower standard of proof , even though it reflected conduct similar to that of which he had been convicted in this case. criminal record.

But the bottom line is this: The factors favoring imprisonment are outweighed by Mr. Trump's unique position. Judge Merchan came out on top by imposing fines, not detention, for Mr. Trump's repeated violations of his court orders. Anyone else would have been imprisoned. Mr. Trump will undoubtedly be treated differently – that is, less harshly – than other criminal defendants in our extraordinarily punitive criminal legal system. But we should not equalize the treatment of defendants by increasing the sentences imposed on each. Our criminal justice system is far too punitive and relies too heavily on imprisonment, regardless of the crime. Furthermore, Mr. Trump is different because he has been president and could become one again.

-Nancy Gertner

Norman Eisen served as special counsel to the House Judiciary Committee for the first impeachment and trial of Donald Trump. Nancy Gertner, a retired United States District Court judge, is a lecturer in law at Harvard Law School. This article was originally published in The New York Times.