On Thursday, Manhattan District Attorney Alvin Bragg and his prosecutorial team, after a grueling trial punctuated by multiple contempt citations against the defendant, former president Donald Trump, obtained guilty verdicts on 34 counts of falsifying business records. Credit goes to the jury of 12 ordinary Americans who heard the evidence and applied the law. The charges were straightforward, not obtuse as critics claimed. (Similar business records cases have been brought against hundreds of other defendants.) And, as Bragg promised, the evidence was overwhelming — coming from witnesses ranging from David Pecker to Hope Hicks to, yes, Michael Cohen. A boatload of documents confirmed the “catch and kill” scheme designed to pull the wool over voters’ eyes in 2016.
Trump’s lawyers were hampered by a client who apparently insisted his counsel make absurd claims (e.g., he had no affair with Stormy Daniels). In enticing the jurors to make unreasonable leaps of logic and ignore testimony, as well as Trump’s own admissions in a civil suit, Todd Blanche likely lost their trust. Blanche, for example, argued the payments to Cohen were for legal fees despite replete documentary evidence and Trump’s admission that they were reimbursement for payments to Daniels.
The flock of pundits who insisted trying Trump was constitutionally untoward and strategically unwise now look foolish and, worse, clueless about the importance of holding Trump accountable for his crimes. One cannot defend the rule of law while simultaneously pleading for a different standard of prosecution for former presidents. Disregarding the naysayers, Bragg upheld his oath and struck a blow for accountability in delivering what may be the only criminal verdict against Trump before the election. (Even if the scandal-plagued Supreme Court were to extend immunity to Trump in the Jan. 6, 2021, case, the ruling would be inapplicable to the Manhattan case concerning personal matters that took place before Trump took office.)
Especially when the federal courts are paralyzed with partisan judges, a state criminal court verdict reaffirms the Founders’ wisdom in devising a system of government with two sets of courts. On the federal side, Trump toady and U.S. District Judge Aileen M. Cannon and the right-wing partisan majority on the Supreme Court (besmirched by Justice Samuel A. Alito Jr.’s unforgivable breach of impartiality) seem to have ground the courts to a halt.
Federalism is designed precisely for this dilemma: If justice is thwarted in one system, it can be pursued in the other. Bragg has bolstered democracy with one guardrail — the state courts — in the face of the collapse of another, the federal courts. (The Fulton County RICO case, meanwhile, is hopelessly bogged down, the result of District Attorney Fani T. Willis’s decision to file a sprawling, unmanageable case against nearly 20 defendants.)
Moving forward in Manhattan, a sentencing hearing will take place this summer. Possible punishment for Trump runs the gamut from probation or community service to real prison time: up to four years’ imprisonment on each charge. Do not think the latter is out of the realm of possibility. Judges have assigned prison time in cases like Trump’s — approximately 55 times, according to Trump criminal trial guru Norm Eisen.
One factor weighing in favor of at least some prison time is the nature of the crime. “His alleged conduct giving rise to the charges here is serious: the payment of hush money to avoid another damaging sex scandal in the last days of the 2016 presidential contest, which could have cost him the election in the wake of the Access Hollywood revelations,” Eisen argued. “This is no minor peccadillo but … an offense amounting to election interference — a precursor to his alleged 2020 election interference.”
Moreover, Trump’s character and past conduct become relevant in sentencing. Justice Juan Merchan can consider all of the following: civil verdicts against Trump for raping and defaming E. Jean Carroll and for fraudulently inflating real estate values; New York’s civil action that fined Trump $2 million and shut down his charity over the mishandling of funds; Trump’s other pending criminal matters; his frequent “predictions” of violence if he does not win the election; and his 10 contempt citations in this trial.
Trump’s role in the violent Jan. 6 insurrection (which 57 senators found warranted an impeachment conviction), persistent lies about the gag order, attacks on the judge and track record of stirring up mobs may come back to haunt him. And finally, since Trump still takes no responsibility for his crimes and expresses no remorse, Merchan may conclude that only prison time would be an effective punishment, just as he concluded jail time might be necessary to curb Trump’s contempt of court.
To be certain, Merchan, who has expressed misgivings about locking up a former president, might not order him incarcerated. (Some previous business falsification cases resulted in jail time; most did not.) And given the certainty of an appeal (likely to take over a year), he will not be behind bars anytime soon. But “felon” will now attach to his name, regardless of the sentence.
The conviction comes at a critical moment in the campaign, and not just because polling suggests it will influence a significant share of swing voters. Trump’s entire persona is built around the facade that he is a powerful strongman, impervious to attacks and solely capable of defending his followers. Now he stands for election as a convict, a weak man too cowardly to take the stand who was bested by a local district attorney. The totalitarian edifice looks pockmarked.
The only thing that could upend the exquisite implementation of rule of law would be the election of this felon. Trump would then insist that the will of the voters and his right to assume power override any state sentence. His docile Supreme Court majority would likely agree. If the American people elect an insurrectionist and, now, a felon, the Oval Office will be occupied by a convict already talking about a “third term.” That such a horrifying outcome remains possible should petrify democracy defenders.
