ALAN DERSHOWITZ: Conflicted Trump Judge Has Plethora Of Sentencing Options — But Will He Go For His Jugular?

In attempting to predict the sentence Judge Juan Merchan will impose on Donald Trump, we are certain of one conclusion: If the past is prologue, the sentence will not be motivated by fairness or justice; it will be the harshest sentence Merchan can impose without risking reversal or the possibility that it will help Trump’s electoral prospects.

Such a vindictive sentence could take many forms, excluding actual prison time. Sentencing Trump, a first-time offender, to a prison term for a minor bookkeeping crime would virtually assure a reversal and an outcry from independent voters.

But one possibility would be for the judge to impose a significant prison sentence — say two years — and then suspend it. A suspended sentence would send the message that the judge regarded the crime as serious and warranting imprisonment, but, because of the special circumstances of the case, making a presidential candidate actually serve time would be inappropriate.

A harsher alternative would be to impose a prison sentence and merely delay its imposition until after the election. Since this is a state and not a federal case, even if Trump were to be elected, he could not pardon himself or commute the sentence; only New York State authorities could bring about that result.

The third option would be to impose a steep fine and a probationary sentence that allowed Trump to remain free with certain conditions. The legality of such a sentence would depend on the conditions and their impact on the campaign.

The sentencing is now scheduled for July 11. Under New York law, the appellate process cannot begin until the sentence is imposed. But there is no reason for such a long delay. To be sure, New York law requires a pre-sentence report before a sentence can be imposed. But the judge probably already knows what sentence he’s likely to impose; he probably decided that even before the predicable verdict came down. So there is no good reason for delaying the imposition of sentence and the appeal.

It is important that this appeal be argued and decided before the election so that voters have a more complete assessment of the case. As of now, all they have is the flawed result of a biased process involving a partisan prosecutor, a conflicted judge and a jury selected from a pool of largely anti-Trump voters. The public is entitled to know what the appellate courts will decide before they allow this case to influence their votes.