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Can Trump still go to jail?
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Can Trump still go to jail?

Getty Images Donald Trump waits in court during his criminal trial in Manhattan in May.Getty Images

Donald Trump waits in court during his criminal trial in Manhattan in May.

Donald Trump’s return to the White House effectively slammed the door on two cases involving federal criminal charges against him.

A lawsuit filed against him for allegedly conspiring to interfere with Georgia’s 2020 election will be stayed until the end of his term — if it’s still pending by then.

But next week, the fate of the remaining case — his conviction on 34 counts in New York — will be determined. It could persist, or it could be swept away by the same political and legal tide that allowed him to escape from others.

Judge Juan Merchan will decide by Tuesday whether to grant Trump’s pre-election request to overturn his conviction. If Judge Merchan sided with Trump, it would almost erase his entire list of criminal woes.

But if the judge upholds the conviction, he will proceed with sentencing later this month. This would likely trigger even more delay attempts by Trump and open an unprecedented new front for the U.S. criminal justice system.

“It’s really uncharted territory,” said Anna Cominsky, a professor at New York Law School.

Will Trump’s case be thrown out?

In May, a New York jury found Trump guilty of falsifying business records. The convictions stem from Trump’s attempt to conceal payoffs from his ex-lawyer, Michael Cohen, who in 2016 paid an adult film star to remain silent about an alleged sexual relationship with Trump.

Trump’s lawyers argue that a recent U.S. Supreme Court ruling granting presidents a certain degree of immunity from criminal prosecution applies to certain aspects of his New York case and that, therefore, the The indictment and conviction should be dropped.

During the trial, Judge Merchan rejected attempts by Trump’s lawyers to dismiss the case on immunity grounds. But that was before the U.S. Supreme Court ruled in Trump’s favor this summer — and before Trump decisively won re-election.

Judge Merchan sets a deadline of November 12 to decide whether or not to grant Trump’s request.

If he overturns the conviction, that will be the end of the matter.

But if he rejects the defense request, Trump’s much-delayed sentencing will remain scheduled for November 26.

An unprecedented conviction – with an improbable prison sentence

Even if Judge Merchan upholds the conviction and upholds the planned sentence, Trump’s team is almost certain to seek more delays and appeals.

Todd Blanche, Trump’s lead lawyer, did not respond to questions about whether he planned to ask for a delay.

Because Trump will be tied to a presidential transition and the legal issues surrounding convicting a president are so complex, some researchers see very little chance of it remaining on the schedule.

“I think the most likely outcome in this case is that the judge delays sentencing until the end of Trump’s term,” said Daniel Charles Richman, a professor at Columbia Law School.

“Actually imposing a sentence would raise a number of complicated problems in the short term,” including political ones, he said.

If Trump finds himself in a Manhattan courtroom later this month, deciding his fate would still pose an unprecedented challenge.

Under the law, Trump faces a range of penalties, including fines, probation and up to four years in prison. But many options are made impractical by his imminent return to the White House.

“Conviction of a sitting president can be one of the most complicated and burdensome sentencing decisions imaginable,” Ms. Cominsky said.

“It is difficult to imagine what punishment could be imposed that would not hinder a president’s ability to do his job or compromise his security.”

Few expect Judge Merchan to sentence Trump to any time behind bars at this point.

“He is a 78-year-old man with no criminal history who was convicted of a non-violent crime,” said retired New York Supreme Court Justice Diane Kiesel. “I don’t think a judge would impose a prison sentence on someone sentenced to these terms.”

Even if Judge Merchan were to obtain such a sentence, Trump’s team would almost certainly appeal, thereby delaying the actual punishment.

Trump could leave a sentencing hearing with the legal equivalent of a slap on the wrist. Judge Merchan could ask the former president to pay a relatively modest fine, in the three or four figure range.

He could also grant Trump an unconditional release; “Basically, goodbye,” as Judge Kiesel puts it.

Trump has no pardon power here

The only thing that is certain is that Trump cannot make this belief disappear single-handedly.

Trump has explored the possibility of pardoning himself from possible criminal charges in the past, and could do so for his federal indictments when he becomes president in January.

But he can’t pardon himself in New York, because the sentencing took place in state court.

His fate, for the moment, is in the hands of the court. But whatever the outcome, Trump will likely avoid the most serious sanctions imposed on him.

“He’s a very lucky man,” Judge Kiesel said.