If Trump is found guilty he should not go to jail | Opinion

With Donald Trump’s hush-money trial wrapping up soon, a key legal principle has come into focus: a conviction requires all 12 jurors to agree he’s guilty. The odds Trump can’t secure even a single hold-out juror may be low, even in heavily Democratic Manhattan.

But if the jury does find Trump guilty, Judge Juan Merchan will then determine Trump’s sentence. There are a range of outcomes at sentencing. If the jury finds Trump guilty, he could face more than 10 years in prison. But Merchan could also forego prison and instead place him on probation with jail time only if he violates specific conditions.

If Trump is found guilty, Merchan should not sentence him to prison. There are several reasons why. First, a single state-court judge’s decision shouldn’t materially impact a national presidential election. At least not here, where the underlying facts happened seven years ago and the prosecution’s legal theory is highly controversial, even outside pro-Trump circles. Longtime Trump critic Sen. Mitt Romney (R-Utah), for example, put it this way: “I believe President Trump’s character and conduct make him unfit for office. Even so, I believe the New York prosecutor has stretched to reach felony criminal charges in order to fit a political agenda.”

It’s hard to predict how a prison sentence would influence the election; it could easily help Trump, whose popularity grew after last year’s indictment. But it would undoubtedly impact voters’ thinking if Trump is in jail (or awaiting jail time) on election night.

Additionally, a single state-court judge should not potentially trigger a constitutional crisis. For example, if Trump wins the election and then orders his own release from a New York jail, the conflict between federal and state authorities would be unprecedented. There would also be severe practical difficulties with imprisoning Trump, including administering federal secret-service protection in a state-run prison facility.

Other more traditional factors considered at sentencing also weigh against sending Trump to jail. He isn’t accused of committing a violent crime, nor was there a direct victim in that Trump didn’t steal money from anyone; he gave it to Stormy Daniels in a questionable manner. And despite his many decades teeming with controversies and investigations, Trump has never before been convicted of a crime.

Trump is not above the law, as he so often thinks he is. But neither is he beneath it, as many of his political opponents want him to be. With the election approaching, it’s essential to American democracy and the rule of law that these factors are given due weight.

There’s a legitimate debate about whether Trump’s egregious behavior in the aftermath of the 2020 presidential election — the focus of criminal matters in Washington D.C. and Georgia — was sufficiently criminal to warrant jail time for the Republican presidential nominee in an election year. And reasonable minds can differ on that question. But when it comes to this specific trial in New York, one thing should be clear to everyone, including Judge Merchan: Paying hush money to Stormy Daniels simply doesn’t rise to that level.

William Cooper is an attorney and the author of “How America Works … And Why It Doesn’t.”