What to know about Trump’s NY hush money sentencing

Donald Trump is scheduled to be sentenced in his New York hush money and election interference case after being found guilty on 34 charges of falsifying business records in order to influence the 2016 election. Trump is the first former president convicted of a crime, though it is unclear whether or how his status as the Republican party’s nominee for the 2024 presidential election will impact the type and length of sentence he receives from Judge Juan Merchan. While Trump’s status as a former president and presidential candidate facing criminal sentencing is unprecedented, so is the underlying conduct to influence the 2016 presidential election that led to his conviction on the 34 criminal charges.

Here’s what to know about his pre-sentencing process in New York, and what type of sentence Trump could face.

Will sentencing happen before Election Day?

No. Judge Merchan has adjourned the sentencing from September 18, 2024 to November 26, 2024. Trump’s motion to set aside the jury verdict and dismiss the indictment based on presidential immunity will be decided on November 12, 2024.

What does the Supreme Court’s immunity ruling mean for Trump’s sentencing?

A sentence will only be imposed if Trump’s immunity motion fails. The potential impact of the immunity case comes from the part of the ruling which held that evidence concerning a president’s official acts must be entirely excluded from jury scrutiny. The 34 counts of falsifying business records are unofficial acts committed before his presidency, but Trump argues that certain evidence from Trump’s presidential term is allegedly protected by immunity.

Trump’s arguments relied largely on the fact that some evidence in the hush money case involved his speech when he was president. However, as the immunity ruling noted, there may be contexts “in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity.” For example, Trump pointed to four tweets about Michael Cohen presented at trial that were tweeted during his presidency. All four tweets concern the personal reputation and character of Cohen, who has never been a government official. The content, form and context make clear that Trump was not speaking in his official capacity, and such speech is likely not entitled to protection of presidential immunity. 

The Supreme Court likely will ultimately decide whether there is at least one piece of evidence in the hush money trial protected by presidential immunity, and if so, whether a new trial or dismissal of the whole case is needed. The Manhattan DA’s office argued “no” for both questions, and if the courts agree, then sentencing will happen after that gets resolved.

What factors are considered by the judge before sentencing?

Consistent with state law, the New York Department of Probation has performed a routine investigation collecting information about Trump’s history of delinquency or criminality, social history, employment history, family situation, economic status, education and personal habits in order to develop a sentencing recommendation to be submitted for Judge Merchan’s consideration. Trump himself was virtually interviewed at Mar-a-Lago by a probation officer on June 10, for which he was granted an exception to sit with his lawyer, which is typically not allowed for those convicted of a felony. Trump’s family, friends or medical care providers may have also been interviewed by the officer.

Any statements made by Trump, his attorneys and the prosecution at the time of sentencing will also be considered, and Judge Merchan could consider additional factors relevant to the commision of the crimes for which Trump was convicted and his character. That could include Trump’s long history of perpetrating fraud and lack of remorse for his actions, as well as Trump’s conduct throughout the proceedings including his repeated violations of Judge Merchan’s gag order. The recent civil judgments against Trump and his businesses can also be taken into account.

Is any of the information gathered in the pre-sentencing procedure made public?

The prosecution’s pre-sentencing memorandum and sentencing recommendation are not made public. However, certain aspects of the report that are not subject to statutory confidentiality will likely be disclosed during the sentencing, when Judge Merchan states for the record what factors he considered when determining Trump’s sentence.

What will happen at the sentencing hearing?

At the start of the hearing, Trump, his attorneys and the prosecution will be permitted to make statements in support of their sentencing recommendations. The prosecution will go first, followed by Trump’s attorneys and then Trump, if he decides to address the court. Typically, when a defendant chooses to make a statement, they express contrition for their actions in order to receive a lighter punishment. After the statements, Judge Merchan will impose a sentence and state for the record all of the relevant factors considered. Trump has repeatedly argued that his status as a presidential candidate should be considered and erroneously suggested that any sentence that limits his ability to campaign constitutes “election interference.”.

Could Trump be sentenced to prison?

As laid out above, several factors will impact the type and length of sentence Trump might receive. Considering the relevant precedents and law in this case and the unprecedented nature of Trump’s criminal conduct, a prison sentence would be legally sound and defensible—especially compared to a sentence like conditional discharge, which is effectively no sentence at all. Trump was also warned after being fined by the court for violating his gag order that further violations may result in his imprisonment, after which he allegedly violated the order again during a press conference immediately after his conviction. A sentence that did not include prison, particularly one that was more than just conditional discharge, would also be legally defensible.

How likely is it that Trump will be sentenced to prison?

Given Trump’s status as a first-time, non-violent offender, his age and the potential consideration of political and logistical factors like his status as a former president entitled to Secret Service protection and as the presumptive GOP presidential nominee, it is unlikely that he receives a prison sentence. A more likely sentence would involve probation either with or without home confinement and electronic monitoring, or some form of community service to make reparation to the State of New York. If Trump does receive a period of imprisonment, a lengthy sentence is incredibly unlikely.

What will happen if Trump is sentenced to prison?

When a defendant is sentenced to prison time, they are typically immediately taken into the custody of the Department of Corrections and Community Supervision. However, because Trump will be accompanied by the Secret Service, it is unclear how this process will unfold if he receives a prison sentence.

What will happen if Trump is not sentenced to prison?

If Trump is not sentenced to prison time, he will be free to leave the courthouse, but the court may set conditions relating to his conduct for a certain period of probation or conditional discharge, such as refraining from consorting with certain people or performing community service and regularly reporting to a probation officer. In the case of a probation sentence, the court could also require a period of home confinement. Trump may be required to return to court periodically to provide updates until the end of this alternative sentence.

Can Trump pardon himself?

No. Even if Trump is elected to a second term, he would not be able to pardon himself for these crimes because he was convicted on New York state charges.