Substantial arguments can be made both for and against a sentence of incarceration for Donald Trump following his conviction in a New York state court on 34 counts of falsifying business records in the first degree (“FBR”). Falsifying business records is a felony when it is done with the intent to commit, aid, or conceal a second crime. Here the jury unanimously found that Trump intended to conspire to interfere with the 2016 presidential election. That is a grave matter, with national implications, making Trump’s conviction perhaps the most serious FBR violation in the history of the state.
We are accordingly of the view that, when Judge Juan Merchan announces Trump’s sentence on July 11, a sentence of incarceration is warranted — not only for the seriousness of the crime but also because many other factors that influence sentencing also favor jail time: Trump played a lead role in the scheme, has shown no contrition, violated a legally valid gag order during the trial 10 times, and has a history that includes civil verdicts for defamation, sexual assault, and fraud. Deterrence of future misconduct for the defendant and others also counsels in favor of prison time, with Trump suggesting he may once again engage in election interference in 2024.
Others may reasonably disagree, but whatever our views, we should base them on accurate information, including about how other FBR felonies have been treated. As one of us (Eisen) has written elsewhere, the data suggests that a sentence of incarceration is imposed in approximately 12 percent of all charged FBR cases: In data spanning from November 2020 to March 2024, 55 out of a sample of 457 cases in which the most serious charge was falsifying business records in the first degree resulted in sentences of incarceration. Out of those 457 cases, there were 332 in which the defendant was convicted of FBR, which is what happened in the Trump case. That means that 17 percent of convictions result in incarceration (55 is 17 percent of 332).
Other Falsifying Business Record Cases Ending in Incarceration
We of course recognize that there has been no prior case in New York of a president falsifying business records to cover up an election conspiracy that may have changed the outcome of a presidential contest — and so of history. Nevertheless, we believe that it is useful to survey other FBR cases that resulted in incarceration — and cases that did not — to see what, if anything, they teach.
The first set of findings, outlined in the tables below, stems from analyzing 26 specific criminal cases prosecuted in New York state in which the defendant was (1) convicted of FBR in the first degree and (2) sentenced to incarceration, excluding cases in which the charges included Class A through D felonies, such as murder, arson, or any other charges extremely dissimilar to Trump’s conduct.[1] Those 26 cases show that among more serious cases in which FBR is charged, incarceration is meted out, including to first-time offenders.
We group the 26 identified cases into two categories in the two corresponding tables below. Group 1 consists of 21 cases that are most directly on point. Defendants in Group 1 received a sentence of incarceration and, in addition, were either first-time felony offenders, had FBR as their top charge, or both. Group 2 consists of five cases that are relevant, as defendants received a prison[2] sentence for FBR charges, but it is either unknown whether they met the other qualifications (FBR as top charge, and first-time offender status) or they did not meet them. We found the cases by searching the Westlaw and LexisNexis legal and media databases. Full case files were then collected from the appropriate court clerk’s office for further analysis. They are linked in the tables (see accompanying PDFs).
These tables follow two prior surveys of relevant FBR cases that one of the authors (Eisen) has published at Just Security with co-authors. The first analyzes 17 analogous campaign finance and election-related prosecutions in the state of New York and nationally related to payments made to benefit a political campaign, demonstrating that cases like this one are not unusual. In the second, earlier survey, the authors examined felony FBR prosecutions across New York state district attorneys’ offices, showing they are common. Indeed, the total number of felony FBR cases from 2015 to the present is likely in excess of 10,000 (our data indicates 9,794 from 2015 through 2023; we have requested updated data from the Office of Court Administration, but it seems clear that the number for the full decade will be about 11,000).
Class E Felonies
A second set of findings is based on the fact that, while the most direct comparison here is to other first-degree FBR convictions and about 17 percent of them result in jail sentences as noted above, the New York legislature has classified that crime as a Class E felony. Accordingly, the treatment of that class of felonies as a whole provides another data point in considering the question of the frequency of sentences involving incarceration. As we show in Table 3, out of the universe of all charged Class E felony cases,[3] incarceration sentences occur approximately 22 percent of the time. Nearly one-third of charged cases, however, are dismissed. When those dismissals are set aside and we look solely at cases resulting in conviction, almost 33 percent of those prosecutions result in incarceration. Those breakdowns are shown in the pie charts below.
As Judge Merchan considers Trump’s sentence, he should — and undoubtedly will — take into account outcomes in other FBR cases in which incarceration was ordered for conduct that was as — or even less — serious. A look at the specific cases in Table 1 is instructive. For example, Rockland County, New York, bus system contractor Richard Brega, like Trump, also was convicted of engaging in an election fraud scheme involving illicitly funneling money to benefit a campaign. Brega was convicted of using 10 “straw donors,” including his family and employees, to secretly funnel more than $40,000 in campaign donations between April and August of 2013. Brega pleaded guilty to one count of falsifying business records in the first degree. He had no prior felony convictions at the time of his offense but was nonetheless sentenced to one year of incarceration. Note that the amount at issue was around a third of the original hush money payment in Trump’s case of $130,000 (and a tenth of the total sum of $420,000 involved in Trump’s cover-up). Brega was, like Trump, a first-time felony offender.
Or take the case of Mark Krebbeks, who was charged with falsifying business records in the first degree to cover up a 2013 scheme to commit financial fraud (rather than election fraud covered up in Trump’s case). Krebbeks was alleged to have fraudulently received reimbursement for overdraft fees related to ATM withdrawals and was convicted. The prosecution asked for six months incarceration and cited Krebbeks’ refusal — like that of Trump — to accept responsibility for his crimes. Upon sentencing, the prosecution held that Krebbeks maintained “his innocence, despite overwhelming proof.” Krebbeks said himself during sentencing that “I’m not admitting guilt, because I still don’t think I’m guilty.” Trump has gone further in attacking the case against him, including violating a court order ten times by impugning witnesses and jurors. Krebbeks ultimately was sentenced on the counts of falsifying business records to four months of custody to be served intermittently, with five years on probation. (There is no indication in the records that Krebbeks had any prior felony offenses.)
Another example of an FBR case in which incarceration was ordered for conduct that was as or less serious compared with Trump’s case: Pfizer Inc. Senior Director Kerriann Bryan “stole property” from the company valued at more than $50,000. She also created a false invoice purporting to come from Pfizer, which she approved and submitted in her position as director. On June 12, 2015, Bryan pleaded guilty to the lesser offense of falsifying business records in the first degree in connection with submitting and approving a false invoice for $9,855. She was sentenced in September 2015 to 364 days in jail. Both the number of false records and the amounts involved in the cover-up were considerably less than in Trump’s case. Bryan too, was a first-time offender.
And there is the case of John Dote who was alleged, while serving as the chairman of Oneida County’s Independence Party, to have “routinely divert[ed] cash and checks” from party fundraisers into his own bank accounts and used the money for personal expenses. In October 2011, Dote pleaded guilty to falsifying business records in the first degree, among other offenses. He had no prior felony convictions, but regardless was sentenced in December 2011 to six months incarceration, five years of probation, and ordered to pay restitution of $65,899. Here too, the amounts at issue in the FBR conviction were less than for Trump. (As one of the authors (Eisen) has written elsewhere, a sentence in this range appears likely if a sentence of incarceration is meted out.)
To take one last example from Table 1, while working as an employee at a retirement home, Christine Boylan participated in a coverup scheme to conceal the sequence of events surrounding a resident’s death. She was convicted following a jury trial of falsifying business records in the first degree and willful violation of public health law (an unclassified misdemeanor). Boylan was sentenced in October 2015 to six months incarceration and five years probation.
The five defendants above represent only a sampling of the cases we have identified, all of which can be found in the tables below.
FBR Cases Not Resulting in Incarceration
What about the more than 80 percent of FBR cases and convictions that do not result in incarceration? Our review encompassed many of those examples as well. While a full treatment of those cases is beyond the scope of this article, we were unable to find any that were remotely comparable in seriousness to the circumstances here of having intended to interfere with a presidential election. For example, the Booker case, reversed on appeal in 2018, involved a building inspector for the Village of Spring Valley who allegedly manipulated certificates of occupancy and other documents to help a property owner fraudulently obtain tax exemptions; that’s hardly to be encouraged but far short of covering up the intended manipulation of an election. In the 2009 indictment of Khalil, in which defendants Khalil and Goldstein both pled guilty, the wrongdoing consisted of splitting large checks to bypass reporting requirements for cash transactions; wrong but not potentially altering the course of history. In others, the defendant was a corporation, where incarceration was simply not an option. They include examples such as ADCO Electrical Corp. (connected cases from 2015 related to the David Adelhardt prosecution in Table 1), or UniCredit Bank AG (2019) and BNP Paribas Bank (2015) (separate cases involving violations of U.S. economic sanctions by processing transactions on behalf of sanctioned entities).
We recognize, of course, that the universe of these and other cases not resulting in incarceration also have points of comparison with that of Trump. For example, although precise data is not available, there are undoubtedly many first-time offenders who fall into this category. But as shown in Table 1 below, having no criminal history does not necessarily equate to a sentence more lenient than incarceration.
The similarities and differences between Trump’s case and other precedents serve as a reminder that drawing comparisons to prior cases is only one data point among many; each case needs to be evaluated across all of the factors that go into a sentence, as noted above in Trump’s case. They include the seriousness of the offense, whether the defendant shows remorse, and his character and history, including other legal judgments. In our view, the balance of the factors, as well as the need for deterrence, points towards a sentence of incarceration. As the pie charts as well as the tables below show, there is ample precedent for that.
Footnotes:
[1] Searches for relevant cases were conducted via Westlaw and LexisNexis. These searches were filtered to include only the state of New York, from January 1, 2015, to the present, under the Boolean search term “falsifying business records in the first degree.” Note that some cases from Westlaw and LexisNexis took place prior to 2015, however appeals were on or after Jan. 1, 2015. Cases gathered from sources other than Westlaw and LexisNexis were not limited to post-2015. On LexisNexis, “Trump” and “Bragg” were excluded from search results to narrow mentions of Trump’s current New York criminal prosecution. Both of these searches yielded 99 results, though not all were unique. All unique results were entered into a separate database. This process yielded 150 potential cases. These were then further filtered. First, civil cases were removed, leaving 146 cases. Criminal cases in which there was no sentence of incarceration or for which the sentence was not publicly available information were removed next. This included cases with no carceral sentence because the indictment or case was dismissed, appeals of already-included cases, sentences of conditional discharge, and cases that had not yet progressed through trial. This yielded 43 remaining cases. Cases in which the indictment was extremely dissimilar to Trump’s (i.e. those including Class A or B felonies and charges such as murder or arson) were then removed, leaving 26 relevant cases.
[2] We use the terms “prison” and “jail” in the loose sense of the words here. In New York, “jail” is afforded to facilities used for determinate sentences of less than one year, while “prison” encapsulates facilities used for longer, indeterminate sentences.
[3] Class E felonies in the state of New York, including FBR, are punishable with a non-carceral sentence (such as probation, conditional discharge, or a fine) and/or a sentence of incarceration ranging from 1 1/3 year to a maximum of 4 years.
IMAGE: Former US President and current Republican presidential candidate Donald Trump leaves Trump Tower in New York City on May 31, 2024. Trump became the first former US president ever convicted of a crime after a New York jury found him guilty on all charges in his hush money case, months before an election that could see him yet return to the White House. (Photo by KENA BETANCUR/AFP via Getty Images)
The following tables, complete with clickable source links, are available in these online PDFs:
PDF of Tables 1 and 2
PDF of Table 3
