Donald Trump: Incumbent or Inmate?
- WULR Team
- Apr 21, 2025
- 4 min read
Prison and the Presidency
Published April 21 2025
Analysis by Abby Miller
In case you missed the big news, Donald Trump won the 2024 Presidential Election. Elections are always cause for extensive discussion: who will comprise the new cabinet, what policies will be enacted, and countless other questions are deliberated by the American people post-Election Day. This election, however, brings with it an unprecedented inquiry. Will the President-elect spend the next four years in the White House, or will he spend them behind bars?
Last May, a New York jury granted Donald Trump the title of the first former American President to be convicted of a felony. He earned this title definitively–the jury convicted him of not one, but a staggering thirty-four felonies. The trial stemmed from Trump’s hush money payment to porn actress Stormy Daniels in an attempt to reduce friction against his 2016 campaign. The details of the felonies themselves are not overly scandalous, but the context surrounding them certainly is: there has never been a former U.S. President convicted of a crime, let alone a President-elect.(1)
Under any other circumstances, thirty-four felonies would seem a sufficient basis for imprisonment. The idiosyncrasy of Trump’s circumstances, however, cannot be overstated. His indisputable power in American politics and inability to accept defeat complicate the question of whether prison time is likely. His infamous reaction to the 2020 election illustrates his unique nature: contrary to most previously defeated presidential candidates, he tossed decorum aside and did not accept defeat, claiming that the election was rigged in Biden’s favor and that the reported vote count did not reflect reality. He echoed this sentiment when describing the New York trial, labeling it as “rigged” and “disgraceful.”(1) Any chance of imprisonment will be met with massive resistance from Trump. Not to mention, there is already a precedent of Trump’s crimes being treated with leniency by governmental institutions. Last July, the Supreme Court granted Trump some “presidential immunity” from convictions regarding his response to the November 2020 Election while in office and his influence on the January 6th insurrection.(2) “Presidential immunity” protects presidents against criminal prosecution for actions taken under the guise of constitutional authority. This 6-3 decision–with the six conservative Justices concurring, three of whom Trump appointed–appealed to the separation of powers and the autonomy of the Executive Branch to justify its safeguarding of Trump.(3) Regardless of the argument’s cogency, it is independently notable because it states that Trump’s crimes may be met with less scrutiny than others’.
Despite the get-out-of-jail-free cards Trump has accrued during his political career, the thirty-four felonies are here to stay, along with other pending criminal cases that may yield similar convictions. There are significant odds that these felonies merit jail time: in Manhattan, more than a third of similar convictions of falsifying business records resulted in imprisonment. Trump faces a wide range of possible sentencing times, especially because the President-elect refused to pursue a plea deal guaranteeing a lesser than maximum punishment. The Judge for the New York Case, Justice Merchan, is known for his sternness and has a history of sentencing white-collar criminals, including Trump’s former Chief Financial Officer. He also tends to take the defendant’s character and behavior into account when making sentencing decisions; the latter does not bode well for Trump, whom Justice Merchan does not particularly admire. Professor Martin F. Horn from John Jay College of Criminal Justice explains that Justice Merchan is “well within his rights to consider Trump’s contemptuous behavior,” which gives substantial weight to Justice Merchan’s disdain of Trump’s misconduct and impropriety in the courtroom, as well as outside the courtroom where the president-elect spoke poorly of the judge and his family on social media. The judge’s decision also integrates the recommendation of the Probation Department, and it is currently unclear whether their recommendation will be pro or anti-Trump. His crimes do not have mandatory minimum sentences, so it is possible he will not receive a sentence at all, and the maximum sentence he could receive is four years.(4)
So, we reach a frustrating but justifiably unclear answer to the question of whether Trump’s thirty-four felonies will manifest into legal punishment. It is difficult to confidently predict the type and severity of punishment Trump will receive, if any, given the myriad of confounding variables. On one hand, we have his tendency to evade accountability and a precedent of the judicial system treating his political crimes with leniency.(2) On the other hand, the sentencing trends of Justice Merchan and of Manhattan cases of falsifying business records hint at the possibility of punishment, along with Justice Merchan’s personal experience with Trump and his misbehavior in his courtroom.(4) The judge’s decision does not exist in a vacuum: he must reckon with his power to turn Trump into the first incarcerated former American president. This could tilt the scale in either direction depending on whether Justice Merchan wants to wield his power in a groundbreaking way or whether he would like the presidency to run its course, uninterrupted by judicial forces. It is difficult to fathom a reality in which a President-elect–namely, Donald Trump–would go to prison. Still, the possibility is remarkable, and we will see if the American adage of “no one is above the law” holds.
Sisak, Michael R., Jennifer Peltz, Eric Tucker, Michelle L. Price, and Jill Colvin. “Guilty: Trump Becomes First Former US President Convicted of Felony Crimes.” AP News, May 31, 2024. https://apnews.com/article/trump-trial-deliberations-jury-testimony-verdict-85558c6d08efb434d05b694364470aa0.
23-939 Trump v. United States (07/01/2024). Accessed November 11, 2024. https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf.
Presidential immunity from criminal prosecution in trump V ... Accessed November 11, 2024. https://crsreports.congress.gov/product/pdf/LSB/LSB11194.
Christobek, Kate, Ben Protess, and William K. Rashbaum. “Will Trump Get Jail Time? We Looked at Similar Cases to Find Out.” The New York Times, October 8, 2024. https://www.nytimes.com/2024/10/08/nyregion/donald-trump-merchan-sentencing-jail.html.
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