Trump Could Receive Unconditional Release Following Hush Money Conviction, Constitutional Law Expert Explains What It Means

Donald Trump is set to become the first president of the United States convicted of a crime.

On May 30, 2024, a New York County jury found Trump guilty of 34 counts of first-degree falsifying business records. It constitutes a Class E felony in New York State, when the forgery is committed with the intent to defraud, commit another crime, or aid or conceal the commission of another crime.

Class E felonies are punishable by up to four years in prison and a fine of up to $5,000 for each count. Trial courts, however, reserve the discretion to impose a sentence that takes into account other factors, such as the defendant's criminal history.

Trump is scheduled to be sentenced on January 10, 2025. In recent court filings, Trump has sought to overturn his guilty verdict, arguing that the U.S. Supreme Court's recent ruling on presidential immunity in prosecutions criminal charges meant he could not be found guilty.

On July 1, 2024, the United States Supreme Court concluded that the Constitution provides absolute immunity from criminal prosecution for actions within its constitutional authority. The court also concluded that presidents have at least presumptive immunity from prosecution for all their official acts and no immunity for unofficial acts.

To be clear, Trump was convicted of illegal conduct that occurred before his first term as president. And while it appears that the Supreme Court's July 1 ruling applies to criminal prosecutions at both the state and federal level, as the court ruled, there is no immunity for unofficial acts, which is undoubtedly the case for falsification of commercial records.

Donald Trump during a preliminary hearing in his hush money case at Manhattan Criminal Court on February 15, 2024. Steven Hirsch-Pool/Getty Images

On January 3, 2025, Judge Juan Merchan, who presided over the New York trial, rejected Trump's argument regarding presidential immunity because the Supreme Court's immunity ruling is not enforceable in the Trump affair in New York. And on January 9, 2025, New York's highest court refused to block Trump's conviction.

But Merchan has been reluctant to impose a prison sentence on the president-elect. In the same order rejecting Trump's presidential immunity argument, Merchan said: “It seems appropriate at this time to make known the propensity of the courts not to impose any incarceration sentence.”

Even if Merchan imposed a prison sentence, many constitutional law scholars, including myself, argue that Trump's sentence would, at a minimum, be deferred until the end of his next term in the Oval Office.

On the contrary, Merchan suggested that he might impose an unconditional release as punishment. This means that no penalties or conditions would be imposed on Trump, such as prison time or parole.

Serving the public interest, not time

Under New York law, a court may impose a sentence of absolute discharge if it, having regard to the nature and circumstances of the offense and the background, morals and condition of the accused , is of the opinion that neither the public interest nor the ends of justice would be satisfied by a prison sentence and that probationary supervision is not appropriate.

Regarding Trump's case in particular, Merchan continued: “A sentence of unconditional discharge appears to be the most viable solution to ensure finality and allow (Trump) to pursue his appeal options.”

Simply put, it appears that Merchan, after considering the totality of the circumstances, including Trump's election to a second term as president, has concluded, as is his right as a judge, that it is in the public's best interest to not imprison Trump.

Generally, trial courts reserve immense discretion when it comes to imposing sentences. Legislatures can, and often do, establish sentencing guidelines, prescribing the sanctions that trial judges can impose. It is clear in this case that the New York State Legislature authorizes trial judges to impose an absolute discharge as a sentence at their discretion.

Accordingly, if Merchan follows up on his January 3 comment, an absolute discharge sentence would be legally appropriate.

Uniquely, Trump requested that his guilty verdict be overturned before his sentencing. Normally, defendants do not have the right to appeal their verdict until a final judgment is entered against them. In criminal law, a final judgment must include the defendant's sentence.

But of course, this is no ordinary criminal case. As Merchan implied, moving forward with sentencing would favor Trump because it would result in a final judgment against him, allowing him to appeal his guilty verdict.

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