Could Trump face jail time if convicted? Experts weigh in

NEW YORK (WPIX) — Even though former President Donald Trump has been indicted for his alleged role in a hush money payment to adult film star Stormy Daniels, it’s not guaranteed the fiery politician would serve time in jail or prison if he’s convicted, experts said.

Trump was charged with 34 felony counts of falsifying business records during his arraignment in a Manhattan court Tuesday.

Falsifying business records would normally be charged as misdemeanors, charges that would not usually result in prison time. But they were bumped up to felonies because they were done in an effort to commit or conceal other crimes, Manhattan District Attorney Alvin Bragg said.

Each felony count corresponds to one of the 34 documents the grand jury said contained a false statement about the payments, according to Politifact.

As felony charges, each count carries a maximum of four years in prison, the New York Post reports, meaning the former president is technically facing a maximum 136-year sentence if convicted on all counts. However, he’d likely be sentenced to less, the Associated Press reports.

In similar cases, either a misdemeanor or felony, an average defendant in their 70s with no arrest record typically doesn’t see the inside of a jail cell, lawyers told Nexstar’s WPIX.

“Despite who he is, for a non-violent E felony with no identifiable victim, a similarly situated defendant would normally not get jail time,” criminal defense attorney Michael Mullen said.

Arthur Aidala, a defense attorney and former Brooklyn prosecutor, told Insider that while he can’t be certain Trump won’t face jail time, he doesn’t “see a scenario where Donald Trump spends one minute in jail.”

Prosecutors allege Trump’s former lawyer, Michael Cohen, paid Daniels $130,000 to keep quiet about her alleged relationship with Trump. The alleged transaction occurred during Trump’s presidential campaign in 2016. 

Cohen said Trump ordered him to make the payments to Daniels and former Playboy model Karen McDougal. Cohen said he paid Daniels $130,000 through a shell company and was reimbursed by Trump, who claimed them as legal expenses. Cohen also said he arranged for the publishers of the National Enquirer to pay McDougal $150,000. In exchange, the tabloid allegedly didn’t print McDougal’s story about her alleged sexual encounter with Trump. 

For his efforts, Cohen said he was paid $360,000 plus a $60,000 bonus, for a total of $420,000. Cohen pleaded guilty to violating federal campaign finance law in connection with the payments. 

Bragg said the alleged payment to Daniels constituted a violation of federal and New York campaign and election laws, therefore bumping up the charges from misdemeanors to felonies. But some legal experts say that logic isn’t airtight.

“There are an awful lot of dots here which it takes a bit of imagination to connect,” Richard Klein, a Touro Law Center criminal law professor, told the Associated Press.

Bragg said the indictment doesn’t specify the potential underlying crimes because the law doesn’t require it. But given the likelihood of Trump’s lawyers challenging it, “you’d think they’d want to be on much firmer ground than some of this stuff,” said Klein, a former New York City public defender.

The former president may also argue that the statute of limitations — which is five years for most felonies in New York — has run out because the hush money payments and Cohen’s reimbursements happened before then.

There were some extensions during the pandemic, and state law also can stop the clock when a potential defendant is continuously outside the state. Trump visited New York rarely over the four years of his presidency and now lives mostly in Florida and New Jersey. His lawyers could question whether the timeout applies to elected officials serving in Washington.

“This case has some very good issues for the defense to litigate,” said Duncan Levin, a New York City defense lawyer and former Manhattan prosecutor. “It’s not an open-and-shut case by any means.”

District Attorney Bragg is also looking at who made the payments and how they were accounted for by the Trump Organization.

Given the statute of limitations and jurisdiction issues, Mullen called the New York case a bit of an overreach by the district attorney’s office. The lawyer also suggested authorities should be focusing on investigations into Trump’s involvement with the Jan. 6, 2021, insurrection at the Capitol and the classified documents he allegedly kept at his Florida home.

“From the outside looking in, of all the alleged crimes Trump is potentially facing, [the New York case] seems to be the weakest case and an overreach by the prosecutors,” Mullen said. “There are so many things to attack about this case. Why did the district attorney sit on this? 

“No one should be above the law. They should investigate Jan. 6  and the Georgia election interference, and the documents at his house.”

Trump, who has denied any wrongdoing as well as the two alleged extramarital affairs, claimed on his social media platform that he would be arrested on March 21 in connection to the Manhattan district attorney’s case, saying it was a “political Witch-Hunt, trying to take down the leading candidate, by far, in the Republican Party.”

However, delays in the grand jury meeting schedule pushed back a vote on whether to recommend charges. 

The Associated Press and Nexstar’s Addy Bink contributed to this report.