Q: What will happen in Donald Trump’s New York state criminal case now that he is president-elect?
A: Trump is scheduled to be sentenced on Nov. 26, but the judge could decide that sentencing is no longer appropriate. If Trump does receive a sentence, it could be appealed, or the judgment could be deferred until 2029, when Trump would be out of office.
FULL QUESTION
What happens if Trump wins the election and then he gets sentenced at the end of the month?
FULL ANSWER
President-elect Donald Trump is scheduled to be sentenced in Manhattan on Nov. 26, after being convicted in May on 34 felony counts of falsifying business records to conceal election law violations stemming from an effort to keep quiet an alleged extramarital affair. Judge Juan Merchan, who oversaw Trump’s New York trial, already has twice postponed the sentencing, which was originally scheduled for July 11.
Now that Trump has been elected the next U.S. president, it’s possible that he may not be sentenced at all.
Before Trump’s sentencing hearing, Merchan, on Nov. 12, is scheduled to decide whether to completely dismiss the conviction based on a motion that Trump’s legal team filed after the Supreme Court’s July 1 ruling that presidents have immunity for certain official actions while in office.
However, CNN has reported that before Nov. 12, Trump’s attorneys are planning to try to get the sentencing cancelled by filing a motion “arguing that as a president-elect, he is entitled to the same constitutional protections as a sitting president and should be protected from any action by state prosecutors.”
If either motion is granted, the charges would be dismissed.
“But if the judge decides to keep the conviction intact, the former president’s lawyers are expected to ask Merchan to delay Trump’s sentencing so they can appeal,” CNN said. “And if that’s not granted, his attorneys are planning to appeal the immunity decision to state appellate courts and potentially all the way to the US Supreme Court to ask the courts to delay Trump’s sentencing until all appeals are exhausted, which could take months.”
If Merchan does proceed with sentencing, he has multiple options, as we’ve written.
Trump could get prison time, but that’s not likely, Cheryl Bader, a clinical associate professor of law at Fordham University School of Law, told us in a June interview.
For a first-time convicted felon, with a low-level, nonviolent felony and a person of advanced age, “under any circumstance like that, there’d be a relatively low chance of incarceration,” she said.
Other sentencing possibilities include probation or a “conditional discharge” with conditions other than incarceration or probation. The “simplest” option, she said, might be for the judge to fine Trump.
“He has not wanted to put his thumb on the scale during the election but now that the election is over, it will be interesting to see whether Judge Merchan will feel any pull to defer to the political process or will see this as perhaps the only opportunity for a judge to hold Trump accountable for his criminal conduct,” Bader said in an email to us on Nov. 7.
If any sentence of confinement is rendered, the judge could order that the penalty be imposed after Trump completes his four-year term as president in 2029. The Trump team could also appeal a leveled punishment.
But some legal experts don’t see it going that way.
“I think any reasonable judge wouldn’t sentence the president-elect,” Jill Konviser, a retired New York trial judge, told Politico for a story that said the “sentencing hearing in the hush money case almost certainly won’t happen.”
And Greg Germain, a corporate attorney and Syracuse University professor of law, told Newsweek that the hush money case needs to be “stayed,” or stopped. “If Judge Merchan tries to proceed with it, or even sets it for sentencing, the Department of Justice will intervene and ultimately the Supreme court will slap him down,” he was quoted saying.
But Germain said he doesn’t believe the judge will try to sentence Trump.
Unlike the pending federal prosecutions against him, Trump can’t pardon himself for state offenses.
Update, Nov. 13: On Nov. 10, Merchan granted a joint request from state prosecutors and Trump’s lawyers to postpone Merchan’s rulings on the pending presidential immunity motion and sentencing. Prosecutors agreed with the defense counsel that more time is needed to consider how Trump’s election win affects the case. Merchan agreed to give prosecutors until Nov. 19 to advise the court on the state’s “view of appropriate steps going forward.”
Update, Nov. 22: On Nov. 22, Merchan indefinitely postponed the sentencing, which had been scheduled for Nov. 26. He gave Trump’s lawyers until Dec. 2 to file a motion with their arguments for dismissing the criminal case because of Trump’s election victory. State prosecutors will have until Dec. 9 to respond to the motion, Merchan said in his order.
On Nov. 19, prosecutors had agreed that the sentencing should be paused to give the defense more time to file its expected motion to dismiss — a motion prosecutors said they intend to oppose.
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Sources
Bader, Cheryl, clinical associate professor of law at Fordham University School of Law. Email sent to FactCheck.org. 7 Nov 2024.
Farley, Robert, et al. “Q&A on Trump’s Criminal Conviction.” FactCheck.org. 31 May 2024.
O’Driscoll, Sean. “Supreme Court Will ‘Slap Down’ Donald Trump Hush Money Case — Attorney.” Newsweek. 7 Nov 2024.
Orden, Erica. “Trump is due to be sentenced in 3 weeks. It probably won’t happen.” Politico. 6 Nov 2024.
Cole, Devan, et al. “What happens to Trump’s criminal and civil cases now that he’s been reelected.” CNN. 6 Nov 2024.
Reiss, Adam. “Judge delays Trump sentencing in hush money case until after November election.” NBC News. 6 Sep 2024.