On Thursday, Manhattan District Attorney Alvin Bragg and his prosecution team won a guilty verdict on 34 counts of falsifying business records after a tough trial punctuated by multiple contempt summonses against the defendant, former President Donald Trump. Thank goodness for a jury of 12 ordinary Americans who heard the evidence and applied the law. The charges were straightforward and not as obscure as critics had claimed. (Similar business records lawsuits have been filed against hundreds of other defendants.) And, as Bragg promised, the evidence was overwhelming, coming from a variety of witnesses, from David Pecker to Hope Hicks and, of course, Michael Cohen. Massive documents corroborated a “catch-and-kill” scheme designed to deceive 2016 voters.
Trump's lawyers were hampered by their clients, who demanded that the lawyers make unreasonable claims (e.g., that he was not having an affair with Stormy Daniels). Todd Blanche likely lost the jury's confidence by forcing the jury to make unreasonable leaps of logic and ignore testimony and Trump's own admissions in the civil lawsuit. For example, Blanche argued that the payments to Cohen were attorney's fees, despite ample documentation and Trump's admissions that they were repayment for payments to Daniels.
Critics who argued that trying Trump was unconstitutional and strategically unwise now seem foolish or, worse, ignorant of the importance of holding Trump accountable for his crimes. You cannot simultaneously defend the rule of law and appeal to change the standard for prosecuting a former president. Ignoring the opposition, Bragg upheld his oath and dealt a blow to accountability by handing Trump perhaps the only criminal conviction before the election. (Even if the scandal-plagued Supreme Court were to extend immunity to Trump in the January 6, 2021 case, that ruling would not apply to the Manhattan lawsuit over personal matters that occurred before Trump took office.)
The state criminal court decision reaffirms the wisdom of our Founding Fathers, who designed our system of government with two sets of courts, especially at a time when the federal courts have been paralyzed by partisan judges. On the federal side, Trump acolyte U.S. District Judge Eileen M. Cannon and the Supreme Court's right-wing partisan majority (disgraced by Justice Samuel A. Alito Jr.'s egregious breach of impartiality) appear to have ground the courts to a halt.
Federalism is designed for just this dilemma: if justice is obstructed in one system, it can be pursued in another. Bragg has shored up democracy with the guardrails of state courts while the federal courts crumble. (Meanwhile, the Fulton County RICO case is hopelessly stalled, the result of District Attorney Fani T. Willis' decision to file an unmanageably bloated lawsuit against about two dozen defendants.)
A sentencing hearing is scheduled for this summer in Manhattan. Trump's potential penalties range from probation and community service to actual prison time, with a maximum of four years on each count. Don't think the latter is out of the question. Judges have handed down prison sentences in cases like Trump's about 55 times, according to Norm Eisen, a leading expert on Trump's criminal trial.
One factor that may merit at least some prison time is the nature of the crime. “His conduct which gave rise to this indictment is serious: paying hush money in the final days of the 2016 presidential election to avoid another damaging sex scandal that could have cost him the election in the wake of the Access Hollywood revelations,” Eisen argued. “This is not a minor oversight; it is a criminal offense amounting to election interference and a precursor to the 2020 election interference allegations.”
Additionally, Trump's character and past conduct will play a role in sentencing: Judge Juan Marchand can take into account all of the following: the civil judgments against Trump for raping and defaming E. Jean Carroll and for falsely inflating real estate values, the New York civil lawsuit that fined him $2 million and forced him to close his charities for misappropriating funds, Trump's other pending criminal cases, his “predictions” of violence if he does not win the election, and the 10 contempt charges against him at trial.
Trump's role in the violent January 6th insurrection (which 57 senators found worthy of impeachment conviction), his persistent lies about gag orders, his attacks on judges, and his history of inciting rioters may come back to haunt him. And finally, Trump's continued failure to take responsibility for his crimes or show any remorse may lead Marchand to conclude that prison is the only effective punishment, just as he concluded that prison is necessary to curb Trump's contempt of court.
To be sure, Marchant, who has expressed reservations about imprisoning a former president, may not order him jailed (some past fraud cases have resulted in prison, but most have not), and given that an appeal is certain (probably more than a year), he probably won't be jailed anytime soon. But whatever the sentence, he'll have the title “felon” attached to his name.
The conviction came at a critical moment in the campaign, and not just because polls showed it would affect a significant percentage of the swing vote. Trump's entire persona is built around the pretense of a powerful dictator who is immune to attack and can only protect his supporters. Now he is running for office as a weakling, too timid to take the stand, a prisoner who was defeated by his local district attorney. The edifice of totalitarianism looks porous.
Only the election of this felon could overturn the exquisite implementation of the rule of law. Trump would then argue that the will of the voters and his right to seize power trump any state ruling. His compliant Supreme Court majority would likely agree. If the American people elect an insurrectionist, and now a felon, we would have a prisoner in the Oval Office who is already talking about a “third term.” The fact that such a dire outcome is possible should make defenders of democracy shudder.
