Fordham University Law Professor Adam Schlahet said Saturday that former President Donald Trump's failure to show remorse and repeated violations of Judge Juan Marchan's gag order “make it more likely” that he will go to prison.
A New York jury last month found Trump, a presumed 2024 Republican presidential candidate, guilty of 34 counts of falsifying business records related to hush money paid by his then-lawyer Michael Cohen to adult film star Stormy Daniels before the 2016 election, making Trump the first former president to be convicted of a felony.
Daniels has alleged that she had a sexual encounter with Trump in 2006, charges that he denies. Trump has maintained his innocence and argued that the case, brought by Manhattan District Attorney Alvin Bragg, is politically motivated. His legal team has said he intends to fight the case, including on appeal if necessary.
The former president faces possible prison time and is scheduled to be sentenced on July 11 by Marchan, who is prosecuting the case, as he is set to accept the party's nomination just days before the Republican National Convention.
In an interview published Saturday by Salon, Schlafett, director of the Brendan Moore Center for Trial Advocacy at Fordham University Law School, said he previously “thought it was highly unlikely that a judge would sentence him to prison” but now “thought it was more likely.”
“If it's the judge who is deciding the case, it would be wise not to antagonize the judge at every opportunity,” Schlahet said. “Every time the judge gets a microphone, he insults the judge, he says the judge is corrupt, he says the judge is inconsistent, and he has no respect for the jury's verdict. That's not the way a defendant who wants probation should behave.”
The law professor also noted that Trump has violated Marchan's gag order 10 times, for which the former president was fined a total of $10,000.
The former president has repeatedly criticized Judge Marchan on social media and in public speeches, calling him “highly conflicted” and “corrupt.” Schlahet told the outlet about Trump, “This is an older gentleman with no criminal record, but there are a whole lot of contributing and aggravating factors that would cause a judge to sentence him to prison,” including his actions and words toward Judge Marchan.
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In New York, falsifying business records is a Class E felony, the least serious of the state's five-level felonies. While there is no minimum prison time for a first-time felony offender like Trump, he could face years of prison time, fines, probation, conditional release, or anything else.
Meanwhile, legal experts are divided over whether Trump could face prison in these unprecedented circumstances.
“It's a very shady case,” said former U.S. attorney and legal analyst Michael Moore. Newsweek Moore said in an email Saturday that it was unlikely Trump would be jailed. Regarding a possible sentence, Moore said, “While some form of supervision is possible, whether in a state facility or home confinement, I believe this is unlikely. Given the logistical complexities involved in dealing with a former president, I believe incarceration is unlikely.”
He also addressed the political implications of imprisonment, saying, “In my view, a prison sentence would have real impact on the argument that Trump is being targeted for the next election. And a prison sentence in this case would add new considerations as the appeals court weighs some compelling arguments in support of overturning the conviction.”
Fordham Law School professor Cheryl Bader previously said: Newsweek “Nobody knows except maybe Judge Marchan, and even he may not have made a decision at this point,” he said in a phone interview Thursday about how difficult it is to know what the sentence will be.
Unlike Schlafett, Bader believes that “it's unlikely he'll receive any prison time,” but points out that “it's possible that a judge could order him house arrest. “Because this is Trump's first crime and it was non-violent in nature, Bader also points out that he is 77 years old and therefore unlikely to receive any prison time.
Bader noted that whatever the former president's sentence is, “it will likely be suspended pending appeal,” meaning he would not have to start serving his sentence immediately.
“It's a very shady case,” said Barbara McQuaid, a former U.S. attorney for the Eastern District of Michigan and MSNBC legal analyst. Newsweek In an email Thursday, McQuaid said while there are some factors in his favor, there are also factors against him, including his “character,” “lack of remorse and repeated violations of the gag order,” which he said “demonstrate a lack of respect for the law.”
“Whether or not a prison sentence is imposed, I don't expect it to begin until after the election,” McQuaid said.
President Trump and President Joe Biden are scheduled to hold their first presidential debate on June 27, with another scheduled for September. The presidential race remains very close, with Trump leading Biden by 1.1 percentage points as of Saturday, according to the FiveThirtyEight national polling aggregator.
The US Constitution does not prohibit a convicted candidate from running for president from prison. In an interview with the BBC's Laura Kuenssberg last Sunday, one of Trump's lawyers, Alina Habba, said that “it wouldn't change anything” about Trump running for office even if he was in prison.
Updated June 8, 2024 at 3:02 p.m.: This story has been updated to include comments from Moore.
Updated June 8, 2024 at 3:22 pm: The headline has been changed.
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Newsweek is committed to challenging conventional wisdom, seeking common ground and finding connections.
