Explaining the Felony Conviction of the Former US President
What did he do, and what happens next?
This article also appeared in a slightly altered format on robertvanwey.substack.com.
Guilty
Former US President Donald Trump is now a convicted felon, determined by a jury of 12 citizens. As one would expect, the political world is abuzz in America, with cheering among some, complaining by others, and a not an insignificant number calling for extreme responses. Many people, including Americans themselves, do not fully understand what transpired or what will come. It can be hard to follow. The American justice system works rather differently than how it is depicted in movies. And the media is flooded with lies or exaggerations by parties with certain agendas.
During my tenure with the New York State Attorney General’s Office Criminal Division, I worked within the specific jurisdiction in which a jury found Trump guilty. Even more, I investigated and participated in the prosecution of cases involving the exact criminal charges for which Trump was found guilty. So here is an accurate explanation of the charges, the main issues at trial, and the potential sentence. I also dispel some of the lies being spread in the media.
The Investigation and the Charges
There are two types of juries in the American criminal justice system. Grand Juries investigate potential crimes to decide whether a violation of law occurred and charges are warranted. While they are overseen by a judge, and are assisted by the prosecutor, they are more or less independent to do their work. Prosecutors and judges ensure that grand juries engage in their investigation within the parameters allowed by law (as few grand jurors are lawyers), and help to resolve issues that arise. In New York, grand juries consist of 23 members, randomly picked from among the general public via motor vehicle records, voter rolls, and other public pools of citizen information. At least 16 must be present to sit in session.
Trial juries sit in the courtroom during the trial of the defendant and are assisted by the judge who oversees the proceedings. They are selected in much the same way as grand juries, and typically consist of 12 people with some alternates in the event someone drops out, becomes ill, or is otherwise no longer available to serve. These individuals hear all the evidence presented by both the prosecution and defense. At the end, the judge will instruct them on the law and advise them about what exactly they should consider and how. As an example, judges will provide some instruction about how to weigh the credibility of witnesses or documentary evidence. They themselves do not give jurors their views on the credibility of specific witnesses or evidence; they just offer general principles for the jury to follow during their own, private deliberations. Judges will also inform jurors about specifics of the law related to the charges. This includes an explanation of the elements of each alleged crime, what certain words in the statute mean, what the evidence needs to prove for a guilty verdict, and other pertinent information. Trial jurors then privately deliberate to reach a decision whether the evidence presented proves beyond a reasonable doubt that the person accused committed the crime alleged.
Returning to grand juries, to protect their work and to keep them free of outside influence, grand jury proceedings are secret in New York. Grand jurors, prosecutors, stenographers, and others must not divulge what occurs during the proceedings under penalty of law. This also helps protect witnesses who are called in before the grand jury to answer questions.
In most cases, the grand jury can require a person to testify (except the defendant himself who cannot be compelled to testify) and request the overseeing judge to hold in contempt anyone who refuses. Moreover, witnesses testify under oath, so lying to a grand jury can lead to a criminal charge of perjury. Some witnesses may wish to plead the 5th before a grand jury — meaning, they refuse to testify on the basis that such testimony would incriminate them. The prosecutor can immunize a witness from any criminal charges predicated on his or her testimony. When this happens, the grand jury (through the judge) can force the witness to testify or face contempt charges. In other words, once immunized, the witness has no risk of prosecution based on their testimony and there is therefore no concern about 5th Amendment self-incrimination, so the witness must testify or face contempt charges. A witness held in contempt can be imprisoned or fined until such time as they comply with the grand jury’s demand.
Once the grand jury has received all the evidence and witness testimony, it votes on whether there is sufficient cause to indict — or charge — the defendant. A majority of the jurors must vote yes, and the standard is whether there is reasonable cause to believe the defendant committed the crime. Reasonable cause asks whether “a person of ordinary intelligence, judgment and experience [would find] that it is reasonably likely that such offense was committed and that such person committed it.” Obviously, the grand jury felt this way and voted to indict Trump.
The grand jury indicted Trump on 34 counts of Falsifying Business Records in the first degree, New York State Penal Law § 175.10. The law states:
A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
Violation of section 175.10 is an E felony.
To secure a conviction of a defendant on this charge, the prosecution must prove beyond a reasonable doubt that the defendant 1) altered or erased any writing or article, including computer data or a computer program, kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity and that 2) the defendant did so with intent to defraud, 3) that included an intent to commit another crime or to aid or conceal the commission thereof. Note that all 34 counts in Trump’s case charged this crime. A criminal “count” means each instance in which a statute was violated. Here, each count reflects a separate alteration of a business record, each done with the intent to defraud for the purpose of concealing another crime.
Proving the charges
Of the elements the prosecution needed to prove, the hardest tends to be intent. Finding a purposeful alteration of a business record requires evidence that shows the alteration was not just a mistake. In Trump’s case, the prosecution presented a great deal of data indicating this. Handwritten notes from numerous participants in the scheme articulated the true purpose of payments made, while the business records reflected a different purpose behind the transactions. Furthermore, the people who made the entries into the business records knew of these notes, often receiving them directly, further suggesting that they fully intended to falsify the records. Audio recordings between Trump, his lawyer at the time, and others revealed their intention to hide certain transactions by recording them differently in the business records. While Trump did not alter the records himself, by directing others to do so he “caused” the records to be altered, which under the statute is treated the same as making the alteration oneself. In other words, that the business records were purposefully altered by (or caused to be altered by) Trump was without doubt.
The other main activity the prosecution had to prove — which elevates this charge from a misdemeanor to a felony — is whether the falsification of the business records was done to defraud someone and conceal another crime. Here, the key assertion was that the records were falsified to prevent disclosures under election rules. Now, to contextualize this, the altered records involved payments Trump made to cover up extramarital sexual episodes with various women. Trump’s defense team argued that he sought only to hide his misdeeds from his wife, not to violate the election law, but the prosecution claimed that the evidence showed Trump wanted to prevent the public from learning of his actions to preserve his chances of becoming elected.
New York Election Law prevents interference in an election. Section 17–152 states:
Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto.
The prosecutor alleged that Trump wanted to hide the payments related to his sex scandals because if the public learned of them it would hurt his election chances in the 2016 election. Put another way, he sought to defraud the public (and committed election-related crimes in order to do so). Some of the evidence supporting this allegation included testimony by multiple witnesses who claimed that they had conversations with Trump and his surrogates specifically about his motivation to protect his election chances. In one instance, David Pecker — a longtime friend of Trump — stated that he served as the “eyes and ears” of the campaign in the lead-up to the 2016 election. His job was to watch out for women coming forward who might tell stories damaging to Trump’s election chances. He then would participate in a “catch and kill” scheme. Basically, he would pay the women for their story, demand they sign a legal agreement to remain silent thereafter, then he would hide the story from the public. Pecker even noted that he once asked whether Trump was worried about his wife finding out. To that, Trump said no. Pecker’s testimony was corroborated by records about payments, recorded conversations, and a great deal else.
Other witness testimony, audio recordings, and records also supported or aligned with Pecker’s testimony. Keith Davidson, attorney to one of the women who had a story Trump wanted to suppress, told the jury that when he threatened that his client would publicly release the story if not paid before the election, Michael Cohen suddenly managed to make the payment. On that point, Cohen told the jury that Trump had planned to drag his feet on paying, noting that the need to do so would be moot once he won the election. The exchange between Cohen and Davidson occurred in emails presented to the jury. Cohen was the former personal attorney of Trump who conducted most of the payments at issue in this criminal scheme. Cohen testified at length about his conversations with Trump on this issue; the two almost always employed coded language to conceal the content of the discussion or the parties involved. Cohen also detailed the way payment was made to prevent its proper recording in the business records. In August of 2018, Cohen pled guilty to charges of tax evasion, making false statements to a federally-insured bank, and campaign finance violations for his role in this conspiracy.
Hope Hicks, former campaign and White House communications director, detailed the concerns about an audio recording that surfaced before the election where Trump proudly boasted about grabbing women by the genitals without their consent. Hicks stated that the campaign worried about other salacious news emerging. Thus, Cohen was tasked with chasing down rumors of any other damaging stories, illustrating the efforts the campaign was taking to conceal any harmful information in the final days before the election. Deborah Tarasoff testified that Trump himself signed all the repayment checks to Cohen, even from the White House after he was elected. Jeffrey McConney advised the jury that he worked with the Trump organization’s accountant Allan Weisselberg — who is currently in jail for lying in Trump’s civil fraud case — to set up the reimbursements to Michael Cohen. They framed the repayments as legal expenses, but inflated the amounts to include the cost of paying to suppress the women’s stories.
Perhaps most damning was testimony from one of the two defense witnesses. Bob Costello, called to testify by Trump’s own lawyers, admitted that when Cohen faced federal charges for his role in this scheme, he emailed Cohen the following: “Sleep well tonight. you have friends in high places, some very positive comments about you from the White House.” At the time, federal authorities were set to prosecute Cohen for violations of tax and campaign finance laws, and for lying to federal authorities to cover up the crimes. Trump’s associates were promising to protect him using the power of the White House. Essentially, Trump — through his friends — was advising Cohen not to divulge any of Trump’s involvement on the unspoken promise that he would help Cohen later (presumably by pardoning him). Trump was doing this because federal investigators were pursuing him, too, as a coconspirator in the scheme. He later benefitted by officials loyal to him in the Department of Justice, including Attorney General William Barr, who derailed the investigation even though the Southern District of New York found that “Cohen acted at Trump’s direction and to Trump’s benefit.”
At the New York trial, the prosecution called 22 witnesses to the stand in total, all of whom testified about the various issues mentioned above. The defense attempted to raise credibility issues among some — suggesting they were simply liars — but they failed to present any persuasive evidence of this. Defense lawyers, for example, attacked Michael Cohen especially. Attacking Cohen’s credibility for pleading to the crimes of lying to Congress and investigators, and committing fraud, may seem like a sensible strategy. Except, the problem is that Cohen pled guilty to those charges based on his conduct in this very scheme. Cohen went to jail for lying to federal authorities because he was concealing the crimes asserted here to protect Trump. When the defense attempted to characterize Cohen as a liar while he was on the stand, the best they could do was to say Cohen did all of the accused crimes himself, without Trump’s knowledge. It made no logical sense, and the jury clearly agreed.
The evidence proved beyond a reasonable doubt all the requisite elements of the charged crimes, leading to a unanimous verdict by the 12 trial jurors on all 34 counts. Despite nearly everyone constantly proclaiming the unprecedented historical circumstances of the case — i.e., the first former US President to face criminal charges — it only took the jury two days of deliberation to reach a guilty plea. This might be a slightly faster-than-average speed for crimes related to falsifying business records, suggesting how powerfully the evidence supported the charges. Then again, these kinds of crimes usually accompany associated complex schemes, such as bid-rigging or bribery. Here, the conspiracy was pretty straightforward, as was the secondary crime the scheme intended to conceal. The evidence, too, was pretty simple to evaluate as the conspirators did not employ any truly intricate tactics to cover up their activities. Put simply, Trump paid money to conceal a story damaging to his campaign, altered his business’s books to hide the purpose of the payments, which defrauded voters and violated campaign finance transparency laws.
Was the Trial Fair?
Various spokespeople, party members, pundits, and attention-seekers have flooded the media and internet with various explanations for how Trump did not receive a fair trial. One can argue that Trump has not been treated fairly throughout the entirety of the process, but that unfairness redounded strictly to his benefit. See my article on this here. In any case, in the section following, I highlight the most frequently proffered claims and explain why they are wrong or simply lies.
Fox Business provided a graphic that neatly lays out many of the claims about the purported problems with the trial. Some of these are utter nonsense. For example, the bottom three related to the judge’s supposed conflict of interest are mere talking points of no substance. Judge Merchan batted away the arguments in careful detail. Complaints about a judge’s independence require significant evidence. None exists here, as discussed in careful detail in Merchan’s cited opinion. The other points are addressed below the image.
Assertion 1: The judge unconstitutionally gagged Trump
Courts issue so-called gag orders all the time. These are intended to maintain the integrity of the proceedings while preserving the rights of the defendant. Judges do not want participants in the case making public statements that could influence the jury or witnesses. This is because these same people can make their claims in court while under oath, where lies are punishable. Lawyers are also under specific restrictions by virtue of their profession’s standards. For example, it is a violation of Bar Association rules for lawyers to make false statements about a case or to submit documents containing false statements — even ones made by a client — if the lawyer knew or should have known the statements were false or contain no legal or evidentiary basis. Several Trump lawyers have been fined, suspended, or even disbarred for engaging in precisely this sort of conduct.
Another purpose behind issuing gag orders is to protect jurors, witnesses, and others. Trump has an extensive history of attempting to influence or attacking witnesses and juries directly, members of the court and prosecution, and family members of them. Many have received death threats as a result. Imposing rules forbidding such activities happens all the time, and violating these rules routinely lands violators in jail while awaiting their trial. Trump has been found in contempt of the gag order in this and other proceedings at least 12 times and has not faced a day in jail. Not only have his constitutional rights not been violated, but he has been treated far more softly than most, if not all, defendants. Assertion 1 has no merit.
Assertion 2: Expired State misdemeanors “ramped up” into felonies (to circumvent the statute of limitations)
This assertion is just weird, and makes no sense. If a prosecutor has evidence of a crime that elevates it from a misdemeanor to a felony, he is welcome to charge it as such and most routinely do. Felonies have longer statutes of limitations because they are more serious crimes. The statute of limitations (SOL) is a phrase identifying the last day from the moment of “injury” or the final act of injurious conduct that can be pursued in court. This timeframe varies between civil and criminal laws, by jurisdiction, and even by the crime. In the Fox Business image, the word “expired” presumably refers to the expiration of the SOL for the misdemeanor charge of falsifying business records.
In New York, misdemeanor falsifying business records carries a 2-year SOL, while the felony version carries a 5-year limit. Determining the expiration date of the SOL for a specific charge depends on a number of questions. For example, when was the last date that a defendant engaged in some activity in furtherance of the crime? That matters in this case because the countdown to the final day under the SOL would begin at least from the date of the last payment under the scheme. In other words, prosecutors would have 5 years to file charges for this scheme from the date of the final payment to Cohen. Another factor that extends the SOL is whether the crime was purposely concealed by the defendant. In such an instance, the SOL countdown would not begin until the date of discovery of the crime.
“Ramping up” a criminal charge — charging a felony instead of a misdemeanor — still requires proof of the crime, and adds the burden of proving the elements of the aggravating factor. Here, the aggravating factor was the attempt to conceal the commission of another crime. Assertion 2 thus makes no sense because the prosecution presented evidence supporting a felony charge. The only issue available for appeal in this instance is whether any of the felony charges were charged after the SOL ran out, which does not look to be the case. Note that the date of the commencement of trial or the decision on a verdict is not affected by the SOL. The SOL only governs the last day a crime can be indicted. After that, rules related to a speedy trial take effect.
Assertion 3: There’s no underlying federal crime stipulated on the verdict sheet
Like the previous claim, this one also makes no sense. The verdict sheet needs only to identify the crime for which the jury shall decide guilt or innocence. No federal crime was charged at all, this was a state proceeding charging state level crimes. In any case, whoever is announcing this perhaps is alluding to the next issue discussed below. For reference, the court did identify the predicate crimes asserted by the prosecution that the defendant was trying to conceal. The prosecution did not have to prove the defendant committed any of these crimes, only that he intended to. But the predicate crimes do not belong on the verdict sheet.
Notwithstanding the senseless assertion that a federal crime was not listed on the verdict sheet, the court did identify potential underlying crimes for the jury to consider that included a federal crime involving campaign finances. These are also called the ‘predicate’ crimes. Related to these, some have claimed — including Trump himself — that the Federal Elections Commission (FEC) did not find any federal elections crime related to this affair, implying that the Manhattan DA was spuriously offering a federal crime as a predicate. This is not true.
The FEC reported that there was sufficient reason to believe Trump and his campaign violated federal election law by hiding his affairs from the federal electorate and paying people to take action to do it. Trump has repeatedly lied about this by pointing to the fact that the FEC never formally pursued him on the matter, but he always leaves out that only the Republicans on the committee voted against launching a full investigation and possible legal action. Nevertheless, the Commission released a detailed report of the findings by its general counsel, available here, which concluded that Trump and his campaign probably did violate federal law. In the New York case, it was up to the jury to decide based on the facts whether Trump attempted to violate federal law as part of the falsifying business records conspiracy.
Assertion 4: They have not stated the crime! *and* The jury did not have to be unanimous!
As indicated above, the first part is purely false — the crime is evident, and well proven. The indictment laid it out in detail, which the defense received well in advance of the trial (you can read it here). What commentators making this claim are trying to say is that based on the jury instructions — or at least their misreporting of them — the crime that the jury must find to elevate falsifying business records to a felony is unclear. (See the full jury instructions here).
But, the prosecutors and the judge both explained that the predicate crime could be any or all of violations of New York’s elections law, violations of New York tax law, or violations of federal election law. Pro-Trump commentators have stated that by instructing jurors that the predicate crime could be any of these three, the court is not requiring them to unanimously find Trump guilty. As an example, here is what Republican Senator Marco Rubio, who himself is a lawyer, tweeted:
What was specifically charged was felony falsification of business records. A standalone crime. An element of that crime, meaning a particular part of the statute that must be proven to convict someone of the crime, is the intent to conceal another crime. Jurors do not need to unanimously agree on what other crime the defendant tried to conceal. They just need to unanimously agree that the alteration or erasure of business records was done, and done with the intent to conceal any other crime.
One prosecutor made a good analogy by stating that burglary requires the 1) intent to unlawfully enter a dwelling, 2) with the intent to commit another crime. As he put it, if three people unlawfully enter a dwelling, but one plans to steal goods, another plans to beat the homeowner, and the third intends to burn down the house, all three are nonetheless guilty of burglary. Likewise, if the same defendant enters the dwelling with intent to commit one of those acts, but he ends up doing another, he still is guilty of burglary. Finally, even if the defendant does not ultimately commit another crime, he is still guilty of burglary if he intended to commit another crime but simply did not or could not carry it out. Using the example above, if prosecutors proved that a burglar illegally entered a dwelling with the intent to beat the homeowner, he would still be guilty of burglary even if the homeowner ended up not being at home at the time of the burglary and the defendant simply left without doing anything else.
Moreover, in a conspiracy — a crime involving two or more people — each conspirator need not know what the other plans to or does do. The conspirator is guilty if he commits an act whose purpose is to achieve the intent of the conspiracy, and he is responsible for the acts of the other conspirators as well. In Trump’s case, whichever of the three asserted laws he intended to conceal, his intent still satisfies the criminal statute even if in the end he or his conspirators failed to commit any of the predicate crimes at all.
Assertion 5: They didn’t let Trump call witnesses! *or* The Court limited the defense’s witnesses’ testimony!
Witness testimony in a criminal case must meet certain standards. Their testimony must be relevant, probative, and truthful. For those intending to testify on technical or legal matters, they must have sufficient expertise to do so. In other words, an untrained person cannot testify to the technical details of whether or how someone was “hacked,” for example. Witnesses also cannot testify exclusively to hearsay, absent certain exceptions. Hearsay evidence is based on knowledge procured from another person’s statement. Generally, a person cannot testify about something to which they have no direct knowledge. A witness cannot say in court that Trump changed a document simply because his accountant told the witness he did. Similarly, a witness cannot testify to something that might be somehow persuasive, but irrelevant.
The limitations referred to in this claim probably relate to those regarding Trump’s own testimony. The judge advised defense counsel that he would not allow Trump to engage in political rhetoric on the stand about conspiracy theories or other topics not at issue in the case. Furthermore, Trump would not be allowed to testify to things for which no evidence was entered into the record. None of this is abnormal. The witness stand is not a political pulpit.
Trump’s team was free to call any number of witnesses, but they only called two. Defense lawyers frequently call few or no witnesses for strategic reasons. This does not mean, however, that they could not call them, just that they simply chose not to. Commentators pointed to several people the Trump team could have brought as witnesses, but did not. Trump’s lawyer Todd Blanche did not offer a specific answer to why he did not call them, nor was he under any obligation to. As he pointed out, the burden of proof is on the prosecutors. Defense witnesses typically come in to pick apart evidence asserted against the defendant. So, while Trump’s team certainly could have called many more witnesses, that his lawyers did not indicates that these people could not have helped their case. Indeed, one witness they did call, Bob Costello, almost certainly hurt the defense. What is implied by this assertion is false. Courts have and always had rules about witness testimony that were applied no differently here.
Assertion 6: The jurors were biased
This claim is hefted in a number of different ways, but they are easy to dispel. Many, including Trump, blast the jury for being “Democrats” because the New York City electorate comprises a majority of Democrat voters. This holds no water for a number of reasons. First, some jurors are selected simply by whether they appear on voter rolls, not by their party. Second, other jurors are selected from DMV records, which do not necessarily include party affiliation or whether the juror even votes at all (and voter turnout is routinely low). Third, both the prosecution and defense conduct research on juror backgrounds, including analyzing their social media and whatever other publicly available information they can find. Fourth, lawyers from both sides interview prospective jurors and can exclude a certain number per side. The judge, too, can exclude jurors if he has reason to believe they cannot be impartial. Finally, jurors who might attempt to hide particular bias through all these processes can get in trouble if they lie during questioning by the lawyers or judge.
A federal appellate court in the district of Washington DC just issued an opinion on the question of whether a Democrat majority jury pool represents an inherent prejudice. The Court noted that the prejudice of an entire jury pool represents an extreme, and rare, case. And, as Carl Sagan once said, extraordinary claims require extraordinary proof. The Court stated:
We expect jurors to view significant criminal events in their hometown with an unapproving eye, whether it is the January 6th attack on the Capitol, a murder, or an armed robbery spree. Generalized disapproval of criminal conduct — even the specific conduct at issue in a defendant’s case — says nothing about a juror’s ability to be impartial in deciding whether a particular individual committed a crime or not…
[Defendant] asserts that the District overwhelmingly voted for President Biden and historically votes for Democratic candidates. That may be. But the political inclinations of a populace writ large say nothing about an individual’s ability to serve impartially in adjudicating the criminal conduct of an individual.
In short, the partisan preferences of a jury pool itself do not provide proof of prejudice and therefore do not warrant a trial’s removal to another jurisdiction. That decision was reached unanimously by a panel of three judges, two of whom were appointed by Trump.
The Penalties
The maximum sentence for an E felony in New York State is 4 years imprisonment. Some people have proclaimed Trump faces over 100 years in prison (4 years maximum times the 34 counts), but while this might be technically true, it is silly nonetheless. Trump will not receive a sentence of more than 4 years under any circumstance.
New York judges enjoy a great deal of latitude in sentencing compared to the federal system. Judge Merchan could choose to give Trump the maximum of 4 years or nothing at all. Typically, first time offenders of a non-violent E felony face no jail time. Still, external factors can lead to incarceration in some cases. For example, a failure to take responsibility for one’s crime often leads to more severe sentences. Also, a proven history of engaging in the same conduct by the defendant, even if uncharged previously, can influence sentencing. A defendant’s predilection to commit the same or similar crime again is another factor a judge may consider. Judges might also consider the impact of deterrence on their sentencing. This means ‘making an example’ out of a specific defendant to send a message to others who might plan to engage in the same criminal conduct.
To help a judge reach a decision, information is gathered into a pre-sentencing report by the New York Probation department. Probation officers prepare the report. Information gathering includes checking the defendant’s criminal record (this is Trump’s first criminal conviction) and interviewing the defendant and others who know him. In this instance, they might also collect public statements made by the defendant. The court’s website explains that this report is “a chance for the defendant to try to make a good impression and explain why he or she deserves a lighter punishment.” Defendants can do this by participating in an interview with a probation officer. The judge uses this data as well as his own knowledge of the defendant procured throughout the proceedings to determine the sentence.
Immediately after the verdict, the court clerk handed Trump a “Court Order for Investigation and Report.” According to reports, counsel for defendants normally fill out and submit the report right away, but Trump’s team did not do that. While the interview must be done in person, Trump can also refuse to appear altogether. Manhattan defense lawyer Ron Kuby told Business Insider:
Most first-time, white-collar criminals are so utterly shocked by their conviction and so completely terrified as to what comes next, that they will crawl to the probation offices and begin the process of begging for mercy. But Trump won’t do a penitent probation interview — or any at all… There’s no benefit for him. If he wants to show remorse, then certainly the probation report is a good place to start doing that, But Donald Trump has not shown remorse and insists everybody else are the wrongdoers.
Another attorney said, “It’s perfectly fine to say the matter is on appeal, and I maintain my innocence. What’s not fine is to say the judge is corrupt and the jury is corrupt.” Angel Rodriguez, who works with teens caught up in the criminal justice system, noted that failing to show up may prove just as harmful to Trump’s cause as giving a bad interview. According to Rodriguez, Trump would essentially be ‘flipping off’ the court and indicating he continues to have no remorse. Further, given Trump’s continuous public assaults on the judicial system, the jury, and the judge himself, it seems improbable that this post-conviction interview would go well if he decided to volunteer for it. Probation officers will likely interview other Trump associates, including his adult children, who themselves have repeated most of the things said by their father. These interviews are also voluntary, so many will probably decline. Based on the character of most Trump associates, it does not seem likely that giving interviews to probation officers will be helpful to Trump in any instance.
Usually, the expression of remorse can help a defendant receive a lighter sentence. Also, the lack of a previous criminal conviction, and the fact that this one involves a non-violent crime tend to work against receiving incarceration as a sentence. The judge in this case also expressed to Trump that he did not want to send him to jail for violating court-issued gag orders multiple times, perhaps hinting about his feelings on sentencing following the conviction.
Fordham University Law Professor Cheryl Bader told ABC News, “I’d be very surprised if we see a sentence of incarceration.” I tend to agree with Professor Bader, though with a great deal of caution. The crime at issue here is one involving business fraud, for which Trump has a long history of committing. Moreover, he still currently faces criminal charges for defrauding voters in a much broader, but similarly motivated scheme involving utilizing fake electors. Even after his conviction he attacked the judge, jury, and others. There is also a strong argument for imposing maximum incarceration as a deterrent to meddling in elections through criminal acts, especially for an office as important as the US presidency. It is extremely difficult to predict what Judge Merchan will do, let alone should do.
No evidence indicates Trump received an unfair trial — but his supporters insist on impugning the process
Since the conviction, many Trump supporters have taken to extreme rhetoric. To be clear, it is fair to argue over the specifics of the evidence and what it may or may not have proved. It is fair to argue over the political effect this conviction may have on the election. It is even fair to argue whether the timing of the prosecution had political implications or influence. What is unreasonable, even unpatriotic, is to engage in speech or conduct that directly imperils jurors, witnesses, members of the court or prosecution and their families, or seeks to destroy the system itself.
Already, attempts to threaten or harass jurors is underway. Advance Democracy, a non-profit that conducts public interest research, has reported numerous social media posts threatening violence against jurors and prosecutor Alvin Bragg, and have included Bragg’s home address as well as the purported home addresses of jurors. One post read, “Dox the Jurors. Dox them now.” Another wrote, “Wouldn’t [it] be interesting if just one person from Trump’s legal team anonymously leaked the names of the jurors?” A separate post read, “We need to identify each juror. Then make them miserable. Maybe even suicidal.” Yet another posted, “May God strike them dead. We will on November 5th and they will pay!” A person who served time in prison for their conduct on January 6 posted on X, “January 20, 2025 traitors Get The Rope.” The post included the image of a noose.
Republican politicians and officials have made their own malicious statements. The Trump campaign has given them the script. In a campaign memo sent to Republican lawmakers, it urged them to call the trial: a “sham,” “hoax,” “witch hunt,” “election interference” and “lawfare.” Many dutifully complied. John Thune, a Republican Senator from South Dakota said the verdict was a “disgrace” and “lawless election interference.” Elise Stefanik, Republican Representative from New York, called it a “sham trial.” Ted Cruz, Texas Senator, referred to it as a “political smear job.” South Carolina Senator Tim Scott, who recently refused to state whether he would accept the results of the 2024 election regardless who wins, stated “This was certainly a hoax, a sham.” Many others have repeated these catch terms. Speaker of the House Mike Johnson told Fox & Friends that the Supreme Court should “step in,” ostensibly to reverse the case. While it is possible the Court might do just that, neither law nor precedent would support such a move and it would further tarnish a court already severely crippled by corruption and ideological rather than lawful holdings.
Trump made his own statement following the verdict. He proclaimed, “This was a disgrace. This was a rigged trial by a conflicted judge who was corrupt.” He added, “This is long from over.” Later, in a message to supporters seeking campaign donations, he wrote “I was just convicted in a rigged political witch hunt trial: I did nothing wrong.” He has restated the mantra that “if they can do this to me, they can do this to anyone,” without realizing the irony that it is true, and always has been. The intention seems to be to strike fear in people, but if anyone doctors business records to conceal a crime, they can be charged and tried by a jury of their peers. I know, I have participated in the prosecution of many cases of this.
Other statements simply defy rationality. Take, for example, House Judiciary Committee Chairman Jim Jordan, R-Ohio, who called this verdict the “weaponization of the federal government.” It is a bizarre thing to say because this was a state case that has nothing to do with the federal government. I can tell you from working in that system, and with many federal agencies, each has very little influence over the other. Often, it works the opposite way.
State and federal prosecutors do sometimes work together, but in very limited instances. In some cases, the two will cooperate when there are separate state and criminal violations that are somehow related. For example, public corruption cases might involve localized bribery but with money from foreign sources. Other times, they will work together to prevent interference with each other’s cases, typically when the same defendants are under separate investigations. In one case I worked on, we were investigating a defendant involved in local election law crimes while a witness in that case was under investigation for federal crimes related to money laundering and certain offshore violations. We collaborated to ensure that neither jeopardized the investigation of the other.
Over my decade in the state criminal justice system, I never once encountered the US Attorney General, the President of the United States, or any of their agents advising me or my colleagues to stand down or to trump up charges. Jordan’s statement is patently absurd and only believable by someone who has no knowledge of or experience with how the various layers of law enforcement in the United States work.
Not only are Trump and his supporters attacking the legitimacy of the trial (without evidence or logic), they are promising retribution or even violence. On Twitter (X), the hashtag “Civil War” started trending immediately following the announcement of the verdict. Tucker Carlson stated, “Anyone who defends this verdict is a danger to you and your family.” In an interview with Donald Trump Jr., the two discussed how the verdict has somehow opened the door to “executing” people like Carlson himself, implying that a violent response by them or their supporters might be necessary. Charlie Kirk, after claiming the trial was “rigged,” wrote “make them pay.” Tim Pool tweeted simply, “war.” The Proud Boys chapter of Ohio tweeted the same and added “standing by,” an allusion to Trump’s previous calls to violence. Ali Alexander, a Stop the Steal organizer, posted an upside-down American flag with the words, “No one is coming to save us. We must.” The Heritage Foundation, a think tank behind the penning of the Project 2025 document, also posted an upside-down flag on its X account.
The United States has an extremist rhetoric problem. Even though the numbers of people calling for violence — whether against jurors and the court, or society generally — is small, it remains dangerous. That politicians currently in office repeat versions of this kind of speech only worsens the problem. Law enforcement must deal with direct threats fiercely and swiftly. But if the country is going to move forward peacefully, the majority needs to find a way to end this kind of behavior once and for all.
A Party of Law and Order
Trump and his party have repeatedly claimed that they are the party of law and order. That message would seemingly suffer from the party’s leader being convicted of multiple felonies. It is for this reason that they make these attacks on the trial and the court system itself. But, as indicated above, these claims are without merit. Despite the general insanity surrounding the trial in the media, the judge presided over a carefully controlled proceeding, following norms like any other trial. The prosecution provided ample evidence to prove the crimes beyond a reasonable doubt. The jury received appropriate instructions and seemingly deliberated as expected.
There is a difference between a corrupt system and the dislike of a result. Here, the issue with the trial is directly a result of the latter. One can legitimately argue that the American justice system needs reform in many areas. One cannot seriously argue, however, that this case represents any deviation from fairness or due process. There simply is no evidence supporting that view.
Robert Vanwey was Senior Technical Analyst for the New York State Division of Criminal Justice, who specialized in investigating public corruption, technology and financial crime. He also has a Juris Doctor and Master degree in history.
Be sure to check out Just Say We Won, his detailed narrative of Trump’s attempted soft coup to overthrow the United States of America, and According to Trump, Any President can do Anything, Including Kill You, a careful analysis of Trump’s immunity arguments made before the Supreme Court. Or check out the Evidence Files Substack for an exploration into technology, science, aviation, and the Himalayas, where Rob frequently lives and works.
