Former President Donald Trump leaves Trump Tower in New York on Tuesday, April 4, 2023. Trump will surrender in Manhattan on Tuesday to face criminal charges stemming from 2016 hush money payments. (AP Photo/Bryan Woolston)
Despite a 34-count indictment against Donald Trump, experts who spoke with Law&Crime say the former president is unlikely to see the inside of a prison cell.
All 34 of the counts of the now-unsealed indictment allege falsifying business records in the first degree. Though alone a misdemeanor, such a crime is elevated to a felony under New York law when an alleged violator acts “with intent to defraud” in the commission of another crime.
At a press conference on Tuesday, Manhattan District Attorney Alvin Bragg declined to specify the other crime — saying New York law doesn’t require it. He alleged, however, that violations of New York and federal election law could fit the bill.
Even if proven, that resulting felony would qualify as a Class E offense, and experts on New York criminal law from both sides of the table — prosecution and defense — agree that it rarely ends in jail time for a first time offender if convicted.
“It would be ‘wrong’ in my opinion if he gets jail time, based on how things typically work,” said Brian Buckmire, Law&Crime Host and NY public defender.
Buckmire did say that based on the statute, Trump is facing “as low as probation and as high as 1.5-4 years” but also noted that “this whole case is a departure from the usual.”
Law&Crime’s Julie Rendelman, a former Brooklyn homicide prosecutor, concurred that it is rare for a first-time offender charged with Class E felonies to receive prison time.
“Judges tend to be harsher at sentencing after trial, but it would not be unusual, even after trial to avoid jail time with an E felony conviction,” Rendelman said.
Diana Florence, a former rival of Manhattan DA Alvin Bragg, who spent nearly 25 years inside the Manhattan DA’s office, said even if Trump were to be sentenced to jail time, the most she could see him actually serving would be a few months.
“For first-time nonviolent offenders in New York State, if he was sentenced to 1 1/4 to 4 [years], he’d spend very little of that in custody. Maybe 6 months and the remainder in a work release situation,” Florence told Law&Crime.
Without responding to criticism directly, DA Bragg told reporters at a press conference that there’s nothing novel about the false business records statute. He said such charges make up the “bread and butter” of his office’s white collar crimes cases.
“That’s why we have a history in the Manhattan DA’s office of vigorously enforcing white-collar crime,” Bragg said at his press conference. “In my office, including the talented prosecutors you saw at arraignment earlier today, have charged hundreds of felony falsifying business records [cases].”
In open court and court records, prosecutors allege that those who participated in the hush-money payments “mischaracterized, for tax purposes,” the true nature of the transactions. Bragg would not specify whether Trump allegedly sought tax benefits personally from the “scheme” he described. Tax fraud isn’t explicitly charged in the indictment, nor is any other crime other than falsifying records.
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