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The legal arguments for sentencing Trump to prison

The legal arguments for sentencing Trump to prison
The legal arguments for sentencing Trump to prison


Sometimes the law is complex and esoteric; other times, it's incredibly intuitive. The principles which govern sentencing are the latter. They constitute a concentration of common values ​​in matters of personal morality and public policy. As a former prosecutor and current defense attorney who has defended hundreds of convictions, I have no hesitation in saying that these principles demand prison time for the recent conviction of Donald Trump.

The most important factor in many convictions is the nature of the offense. But the emphasis on conduct is different from that of trial. The trial is only about whether you are guilty or not. But in sentencing, there are degrees of culpability, and the seriousness of the conduct must be taken into account. For example, you can rob a bank with a toy gun or by executing hostages until the bank hands over the money. Either way, you're guilty of bank robbery, but the latter will carry a harsher punishment, even though you're only charged with the robbery, not the shooting.

Fair elections are a core democratic value, and the conduct that led to Trump's conviction undermined the fairness of the 2016 election. We can discuss the nuances of what fairness means, but it must minimum prevent from committing crimes to gain an advantage. If Trump had falsified business records to get a small loan, that would be one thing. It's bad, but it's a private commercial matter with limited scope. In contrast, falsification of business records related to an election to the nation's highest office harms every American in ways that cut to the heart of our national identity. It hurts even those who voted for Trump, even if many don't recognize it. Fair elections are essential to the legitimacy of our democracy, in which all Americans have a stake, no matter who they vote for.

Another key factor in sentencing is deterrence. This takes two forms. The first is “specific deterrence,” meaning the need to deter the accused from committing more crimes. Here, defense attorneys often point to their clients' remorse to argue against imprisonment. He's a changed man, look how sorry he is, the argument goes. But Trump is not only remorseless, he is viciously attacking the justice system for holding him accountable. Additionally, some of these attacks took place in violation of a court-imposed silence order. These violations demonstrate both a disregard for the court and the fact that less restrictive restrictions on his freedom, such as probation, are not enough to keep him there. A person who does not respect the law will only stop breaking it if the ability to do so is taken away. Prison severely limits this ability. Editor's Choice

Defendants also frequently point out how much a conviction has already cost them to argue that prison is not necessary to change their ways. They may talk about job loss, divorce, or social isolation. But what did Trump lose? Far from being fired or becoming a social pariah, he blocked the Republican nomination for president while this case was pending. The argument that he has already been punished enough is simply not credible.

The second type of deterrence is “general deterrence,” or the need to persuade other potential criminals not to commit crimes as Trump did. Here, a prison sentence would be a powerful reminder to others, especially the powerful, that crimes have consequences. If a former president can be sent to prison, so can anyone who breaks the law. Conversely, not sending Trump to prison sends the opposite message: his crimes are not really serious. Everyone will be watching to see what happens to Trump at sentencing. To deter others, the court should send a clear message that crimes like his will not be tolerated.

Another goal of sentencing is to account for the individual's history. There's more to defendants than the crimes they commit, and when they get a lenient sentence, that factor often comes into play. But it's, at best, a mixed result for Trump. Although he was never convicted of a crime, in civil cases he was convicted of a fraudulent scheme involving more than $450 million, personally misusing his charity's funds, misusing sexually and defaming E. Jean Carroll, then cavalierly defaming her again. after the first judgment against him. Related

Additionally, as a wealthy, powerful, and educated person, Trump's crimes were not born out of necessity or from not having been given a fair chance in life. There is no excuse for his conduct in such a privileged context.

A final principle in sentencing is the desire to avoid unwarranted sentencing disparities. Here, many noted that the crime for which Trump was convicted is the most serious crime in New York, one that does not typically result in prison time for those without prior convictions. That's true, but it's not particularly relevant. Avoiding unjustified disparities means treating similarly situated defendants equally. But the way Trump violated this law is unique. As noted, this undermined the fairness of the presidential election in which he was running. Literally no American defendant in history has had this as the backdrop to their crime. His conduct being atypical, an atypical sanction is justified.

Also, remember that Michael Cohen went to prison for participating in Trump's hush money scheme, a crime for which Cohen accepted responsibility in his guilty plea. Trump was the leader of this conspiracy and Cohen was his subordinate. Not sentencing Trump to prison would create an unfair disparity with someone who is less guilty and who at least feigns remorse.

Most commentators would probably say that Trump is unlikely to serve prison time. They emphasize his lack of prior beliefs in making this argument, but they often overlook the factors I highlighted above. Others think the court should hesitate to jail Trump for fear of appearing political. This concern is not legal; it's cowardice. The law does not change to accommodate feelings, much less wrong feelings.


Justice demands a courageous thing: incarcerating Trump. This will undoubtedly enrage millions and likely lead to even more threats against Judge Juan Merchan, District Attorney Alvin Bragg, and their staff and families. So far, these public figures have shown great courage in serving the law. Hopefully they will continue to do so at sentencing on July 11th.

Gregory Nolan is a former federal and state prosecutor and currently practices white-collar criminal defense at Brown White & Osborn.




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