Trump Sentencing Ruling Was Right, but He Shouldn’t Go Scot-Free | Opinion

Despite the fact that we are now in the final chapter of the presidential campaign, the various court cases pending against former President Donald Trump are back in the news. Whether it’s new indictments being filed, or motions related to what conduct falls within the recent Supreme Court decision on presidential immunity, there has been plenty of activity on the Trump legal front. However, given all the legal skirmishing, only one case has led to convictions so far and that is the Stormy Daniels hush money
case in which a jury found Trump guilty.
While there seemed to be a slight advantage for President Joe Biden, when he was still the Democratic candidate, in the polling immediately following the convictions, it would be hard to say, given how close the race is, that the conviction in the New York case will play much of a role among swing voters in key swing states. Thus, it is unlikely to meaningfully impact the November election.
However, if Judge Juan Merchan, the jurist presiding over the Stormy Daniels case, had handed Trump any meaningfully punitive sentence before Election Day, all that may have changed.
Trump’s sentencing was scheduled, until last Friday, for Sept. 18, and a ruling by the judge on Trump’s claim that his conduct is covered by the Supreme Court immunity ruling was scheduled for two days before that. At the end of last week, Merchan made the wise decision to postpone sentencing until after Election Day.
As much as Merchan certainly wanted to hold the former president to the same standards as any other defendant and handle sentencing in the normal timeframe, and as much as he may have wanted to remove his sentencing decision from any political considerations, the reality is that it is impossible. Any decision to jail or not jail Trump less than two months from Election Day cannot be divorced from its political impact.
Sure, Merchan’s decision not to sentence Trump in mid-September—having already postponed sentencing once to give time to consider the Supreme Court immunity decision— will be criticized for doing just what he committed not to do—treat defendant Trump differently from any other criminal defendant.
On the other hand, if he had sentenced Trump to any prison term, he would have been accused of massive political interference that would have played into the Republican narrative that a Democratic prosecutor and a Democratic judge were part of a broader Democratic plot to use the power of the judiciary to bring Trump down and cost him the election.
By now, Trump has many badges of dishonor, from the multitude of criminal indictments in four cases against him to the civil cases where he and his business have been found liable for hundreds of millions of dollars in fines and reparations. The unique badge of dishonor the Stormy Daniels case provides—branding him a criminal—is undoubtedly viewed by his detractors as just one more indication of the abomination that is Trump. His millions of supporters, see it as a badge of honor, picturing Trump as the lone warrior standing up against a politicized judicial system. For the vast majority that has already decided for whom they are voting in November, Trump’s status as a criminal probably did nothing more than harden views.
However, a prison sentence for Trump imposed now may well have taken the emotions surrounding this case to an entirely new level. With jail time imposed in the final weeks of the campaign, a whole new campaign thrust would have opened that I think would have been to Trump’s advantage. A big new question in voters’ minds would have been, “Do you really want Donald Trump to be behind bars?” Framed that way, it would not only have fueled massive voter turnout among Trump supporters, and created a valuable new Trump fund raising plea. Most disturbingly, it likely would have moved those who will ultimately decide this upcoming election—a small sliver of independents and undecideds in Michigan, Pennsylvania, and Wisconsin. Karl Rove, a Republican political consultant who is no Trump fan, recently suggested that the imprisonment issue would help Trump quite a bit with voters.
Most citizens, who either are not paying attention or don’t rate the New York case as important in deciding their votes, could have been pushed to cast their votes for Trump simply because they don’t view the hush money case as one that should land him behind bars. Swing voters might have been more likely to vote for Trump if they believed it would keep him out of jail. (Although as a state, not a federal conviction, a President Trump would have no authority over the handling of an appeal in the New York courts and no ability to pardon himself.)
Moving from the politics to how the legal system ultimately should approach sentencing Trump, there is a strong case for sending the former president to prison. While there is a full spectrum of sentences Merchan can impose—from probation to community service to home confinement to four years in prison, plus fines—a first-time offender of a non-violent crime, who is 78 years old, is unlikely to be sentenced to prison.
Yet, Trump did not conduct himself like any other defendant. His conduct during the trial caused the judge to note 10 acts of contempt. Trump’s continuous violations of the gag order he was under showed absolute disregard for the judicial process. His relentless attacks on the judge and Manhattan District Attorney Alvin Bragg made clear he was attempting to undermine confidence in the judicial system altogether. Moreover, it is a certainty he will not show even the slightest remorse at sentencing. Most importantly, this was no ordinary falsifying business records case, but one involving actions intended to subvert the most important election of our entire democratic system. And he served in, and is running for, the highest office of the land, responsible for ensuring democracy and the rule of law.
So, how can Merchan reconcile the political implications of a prison sentence—which could hand Trump the presidency—while upholding principles of judicial integrity, which could mean a prison sentence for a former president? First, it is certain Merchan will grant a motion that Trump be free on bail pending appeal, and the case will be subject to a lengthy appeals process. It should also be noted that Trump has some meaningful chance, according to many objective lawyers, of overturning the conviction based on the unique legal grounds on which the case was brought.
But don’t get me wrong. Trump needs to be sentenced to prison, even if only for a few months.
Leaving Trump’s appalling behavior throughout the trial unaddressed by a sentence that would in no way serve as a deterrent to him as he faces several other serious criminal trials, would certainly be read by Trump to mean that even after 34 convictions the system cannot hold him accountable. On the other hand, the imposition of some limited prison sentence would clearly demonstrate that no one is above the law when it comes to how a criminal defendant conducts himself. However, it has to be done.
The damage Trump has done to perceptions of the integrity of our election system through the constant pounding away at the Big Lie about the 2020 election, is just the impact Trump is attempting to inflict on perceptions of the integrity of our judicial system. That is inexcusable for someone seeking the role of the nation’s chief law enforcement officer. Assessing that behavior is perfectly reasonable grounds for Merchan to impose a prison sentence in a case which was all about manipulating our democratic system.
So, judge, you have accomplished the first part of the best course of action by not sentencing Trump prior to the election. Now for the hard part—imposing some hard time on Trump the convicted felon. He deserves no get out of jail free card.
Tom Rogers is executive chairman of Oorbit Gaming and Entertainment, an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, a member of Keep Our Republic (an organization dedicated to preserving the nation’s democracy). He is also a member of the American Bar Association Task Force on Democracy.
The views express in this article are the writer’s own