GOP senators warn judge against sentencing Trump to prison

Senate Republicans are warning New York Judge Juan Merchan not to sentence former President Trump to prison or house arrest or take any other action that could disrupt the likely GOP nominee’s ability to campaign ahead of the November election.

It could take months for Trump to appeal his conviction on 34 felony counts related to the falsification of business documents, and legal experts don’t expect the conservative-leaning U.S. Supreme Court to intervene to help him.

That means that Trump’s fate rests largely with Merchan, who could choose punishments ranging from prison and house arrest to probation and community service.

Merchan, who earned favorable reviews from legal experts for his careful handling of the case, will sentence Trump on July 11, four days before the Republican National Convention in Milwaukee.

Republican senators acknowledge that legal experts say it would be highly unusual for Trump to receive a prison sentence for a class E felony and that he would most likely be allowed to remain free pending his appeal to higher state courts.

But they’re nervous about what may happen, because Merchan wields a lot of discretion over the terms of the sentence and they felt he tilted the trial against Trump’s team.

Sen. John Cornyn (R-Texas), a senior member of the Senate Judiciary Committee, said it would be a “further abuse of power” to incarcerate Trump or sentence him to home confinement.

“I’m very troubled by what I see in the way the courts have been weaponized,” he said. “It used to be there were some institutions in America, namely the FBI, the Department of Justice and the courts, which were regarded as out of bounds for overt partisan politics, but unfortunately that’s changed, and not for the better.”

Republican senators warn any sentence that would impact Trump’s mobility or ability to communicate with voters could seriously undermine voters’ confidence in the fairness of the 2024 election.

Legal experts predict Merchan won’t sentence Trump to prison right before the convention, but some GOP lawmakers fear that scenario is possible given what they’ve seen of the prosecution and trial so far.

Sen. Ted Budd (R-N.C.) said it would be “foolish” for the judge to sentence Trump to jail or House arrest.

“But when you see the conviction and the rules that he instructed the jury with, it’s completely unfair, it’s unconstitutional, and I would put nothing past him at this point,” he said of Merchan.

Budd said a tough sentence “would only strengthen the resolve of the Americans to support President Trump.”

Sen. Thom Tillis (R-N.C.), a member of the Judiciary Committee, had felt certain that Trump would never be convicted by the Manhattan jury and now doesn’t know what to think about the prospect of the likely GOP nominee for president winding up in prison before Election Day.

“With this process, anything is possible,” he said.

Tillis said if the judge restricts Trump’s ability to campaign, he would need to show the sentence does not diverge from those of other defendants convicted of the same or similar crimes.

“Unless they can pretty quickly find examples of where similar cases have resulted in prison time, it just adds more fuel to the fire that it was [District Attorney Alvin] Bragg’s politically motivated decision” to ask for jail time, he said.

Trump was convicted on 34 counts of falsifying business records, a class E felony, and faces up to four years in prison on each charge, though most legal experts say the judge could not sentence him to more than 20 years in prison.

Trump’s legal team would push hard to defer any sentence until he completes his appeals, which likely would drag on past Election Day.

An analysis by Norm Eisen, a senior fellow in governance studies at the Brookings Institution, found that only 1 in 10 cases of first-degree falsification of business records in New York resulted in imprisonment. His findings were first published in The New York Times.

Some New York legal experts note, however, that Merchan, the judge, has a reputation of being tough on white-collar criminals.

Trump warned over the weekend that the public would reach a “breaking point” if he were imprisoned or confined to his home, acknowledging “it could happen.”

“I think it would be tough for the public to take,” he said.

Tills said a tough sentence might help Trump politically, because it would further enrage his supporters.

“Now he looks like he truly is being treated in a punitive way by the courts,” he said of time in jail. “It would … really undermine the credibility of the case being brought forward to begin with.”

Some Republican senators have predicted the Supreme Court would overturn any criminal conviction of Trump.

“I think it ultimately all will be reversed by the Supreme Court,” Sen. Rand Paul (R-Ky.) said last month. “I think a lot of these cases [will] work up, and the Supreme Court finally says enough is enough, we’re not a banana republic.”

Sen. Ted Cruz (R-Texas), a member of the Judiciary Committee, predicted last year that “the ultimate outcome of any Donald Trump conviction on this indictment would be a reversal in all likelihood at the U.S. Supreme Court.”

But legal scholars say they don’t expect nation’s highest court to get involved in a state criminal matter, pointing out that Trump’s conviction doesn’t raise any obvious constitutional concerns.

“The most likely answer is the Supreme Court is going to do nothing,” said Ilya Somin, a professor of law at George Mason University whose research focuses on constitutional law.

“There is no procedure for a case like this to go directly from a state trial court to the federal Supreme Court. There just isn’t,” he said. “So far, at least, there isn’t really an issue of federal law here. You can try to concoct one, but that’s another obstacle to getting it to the Supreme Court at all.

“At the very least, I think the federal Supreme Court won’t do anything unless and until this gets all the way to the New York state supreme court, or whatever is the highest New York court that would make a decision,” he said.

Barbara McQuade, a law professor at the University of Michigan who specializes in criminal law and procedure and previously served as U.S. attorney for the Eastern District of Michigan, said there’s no chance of the U.S. Supreme Court stepping in to wipe out Trump’s conviction or to stave off a prison sentence before the election.

“I see zero chance of the U.S. Supreme Court intervening in Donald Trump’s conviction before the election. He must exhaust his appeals in the New York state court system, which will take more than a year,” she said.

“Even then, the case would reach the Supreme Court only if there is some issue of federal statutory or constitutional law,” she noted.

But some Republican senators say it would be necessary for the U.S. Supreme Court to get involved before Election Day.

“It would be unprecedented, but look at the response we’ve seen already with the conviction, with fundraising numbers we’ve never seen before,” National Republican Senatorial Committee Chair Steve Daines (R-Mont.) said of what the public response would be to putting Trump’s behind bars.

Asked about the U.S. Supreme Court’s role, Daines said, “We shouldn’t allow a kangaroo court in New York to be interfering in this election.”

“The people of America should be the jurists,” he said.

Sen. Chuck Grassley (R-Iowa), a former chair of the Judiciary Committee, said the Supreme Court doesn’t need to get involved in Trump’s criminal case now, but he argued it may need to if the appeals threaten to drag past the election.

“Not at this point,” he said of whether the U.S. Supreme Court needs to review the conviction. “Might be if other appeal processes are bogged down and it could go beyond the election that you get an answer on whether this is a fair or not, then I think there might be a reason for the Supreme Court to step in.”

Grassley said “everybody I’ve heard talk about it” thinks a prison sentence is highly unlikely, given this is Trump’s first criminal conviction.

But he thinks Trump could still win the election if locked up on Rikers Island.

“It would probably help him get reelected if he’s behind bars,” he said.