If Trump is convicted, what happens next?

We all have a huge normality bias, that is, the refusal to envisage impending disaster. It is therefore difficult to understand that we could face an unprecedented constitutional crisis in November. But hey, nothing that's happening in American politics these days is normal. In the case of Donald Trump, we have already gone well beyond the limits of the known world. Yes, all things considered, it's unlikely that a former president — much less a potential president-elect — would end up in jail or prison. Of course, it is also unlikely that a former president would face four separate criminal trials. Yet here we are. So what could actually happen at Trump's criminal trial in New York? How could this happen if he was treated no better – or worse – than any other criminal defendant? Let's start with Trump's difficulties following the judge's orders, both in and out of the courtroom. Judge Juan Merchan, who is presiding over Trump's criminal trial in New York, issued a gag order preventing defendant Trump from attacking people like witnesses and court staff, although the judge allowed Trump to continue to attack him and the prosecutor. If Trump violates this order – and he probably already has – he could be fined or imprisoned for contempt.

Normally, a judge could, depending on the seriousness of the offense, start by issuing a severe warning and, possibly, a fine. If the judge's orders continue to be ignored, the penalty will quickly escalate. Even though sometimes it is only for a day and a judge allows the person to purge their contempt by humbly apologizing and promising never to do it again, openly defiant people who repeatedly violate court orders court end up in prison – even former presidents. Judge Merchan will likely have even less tolerance for Trump's outbursts in the courtroom. No criminal judge will allow a defendant to control the courtroom, intimidate witnesses, and influence the jury. Trump has already been warned about his behavior, and Merchan will respond strongly if this continues. Because this behavior is so serious and threatens the integrity of the trial, there will not be a series of escalating sanctions. Instead, judges handle these situations either by removing a disruptive defendant from the courtroom or by ordering the defendant to be physically gagged. There is even Supreme Court precedent that gagging an unruly defendant is sometimes “the fairest and most reasonable option” in these situations. Suppose Trump is found guilty. Will he really go to prison?

Many people think this is impossible, but it would certainly be possible for any other defendant. In Trump's case, he could, in theory, be sentenced to between probation and a maximum sentence of 20 years if convicted on all counts. A 20-year prison sentence, however, is extremely unlikely, if not impossible. The maximum sentence Trump faces is likely four years, and his actual sentence, for several reasons, would likely be considerably less. It could even be probation, although given Trump's complete lack of remorse, some sort of custodial sentence is likely. Defendants found guilty can be immediately sent to prison to await sentencing. This is actually quite common after a felony conviction. Alternatively, a convicted defendant may remain at large until sentencing. A judge can even grant bail pending appeal, meaning a defendant can remain out of custody, even after being convicted, until the appeal has been heard. Trump's case would normally be a good candidate for bail pending appeal. But much will depend on Trump's behavior during and after the trial, because courts do not release people, especially after they have been convicted, if the judge believes they pose a threat to society. Judge Merchan has previously warned Trump to “refrain from making comments or engaging in conduct that might incite violence, create civil unrest, or endanger the safety or well-being of any person.” “. If Trump makes any effort to whip up his supporters, as he did before the events of January 6, 2021, he will almost certainly find himself sent straight to prison. So, is it likely that Donald Trump will be gagged or imprisoned? It all depends on Trump. Maybe he will behave correctly. But these things are real possibilities for the former commander in chief, as they are for any accused. The rule of law can sometimes be a harsh mistress. There is a very real possibility that one of our two leading presidential candidates will be a convicted felon serving time by November. It's bad enough. But if he is elected despite a conviction, the constitutional crises will not be much more serious. Yes, imprisoning a former and perhaps future president would be unprecedented. But we live in unprecedented times and unprecedented things are going to happen. Trump facing prison, including for contempt of court, is one of the least bizarre scenarios we're likely to see play out in the coming months.

Chris Truax is a founding member of the Society for the Rule of Law and an appellate attorney.

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