Trump Sentencing Tests Key Ideal

June 23, 2024

If someone mentions “July 11,” what pops into your head? Exactly right, it’s the day Donald Trump will be sentenced. The date doesn’t need to be entered on the calendar. It’s on our minds.

The Trump court proceedings have turned into a major test of one of the most widely accepted of Our Common Purpose’s 10 core principles: We Are a Nation of Laws – That Need to Be Equally Applicable to All.

The ideal draws high approval each time it is reviewed, getting strong agreement from a very consistent range of 77% to 79% of likely voters in one survey after another. Importantly, the support comes from near equal percentages of Republicans and Democrats. And of those who don’t strongly agree, almost all others somewhat agree.

From the get-go, the principle was regarded not as current reality but as an aspiration.  Our laws apply to everyone.  None of us should be excused, nor should any individual or class of individuals be treated more harshly than others.  Well before the heightened awareness brought on by the Black Lives Matter movement, the primary concern of the fine folks who participated in developing the principles were the legal inequities endured by people of color and of lesser means.  Read more about the principle.

That concern has not gone away but it has been overshadowed of late by a claim that comes totally out of right field.   All of a sudden, the principle has a political component to it.  Republicans are contending that Democrats have weaponized the legal system to go after them, Trump in particular. Even as he was losing in the New York courtroom, his claim of selective prosecution might have been winning in the court of public opinion.

Then along came Hunter Biden.  Put aside that a whole series of other Democrats are also facing criminal charges, among them Sen. Robert Menendez, Rep. Henry Cuellar, and this past week New Jersey Democratic power broker George Norcross. Biden is the son of the president, and his conviction was by itself enough to take much of the wind out of the Republicans’ claims.

Nonetheless, the nation’s judicial system is under intense scrutiny. The district attorney and prosecutor in Atlanta have been accused of impropriety. The federal judge in Florida has been under fire for her handling of the classified documents case.  By comparison, Judge Juan Merchan, who presided over Trump’s trial in New York, has acquitted himself well.  However, he too is far from out of the woods.

While there is a standard process for determining sentencing that includes a recommendation from the probation officer and review by the attorneys, all eyes will be on the judge when he hands down the sentence.  Strike the right balance and there will be little grumbling. Too lenient and Democrats will howl. Too harsh and we’ll be right back to where we just were with Republicans crying persecution.  But in this case what is too harsh?  What is too lenient?

Merchan has huge latitude in the decision. What he needs is huge wisdom.

While New York defense attorneys not involved in the case have been quoted as saying it’s unheard of for a 77-year-old, first-time offender in this type of case to be jailed even for a day, theoretically Trump could be hit with prison time ranging from 16 months to four years for each of the 34 felony counts. Or the judge could allow the jail time for each of the counts to be served concurrently. He could also choose from other options, including a lighter sentence, house confinement, or a sentence of probation. Or he could give Trump a “conditional discharge” with some requirement such as community service.

On the other extreme, the judge could skip imprisonment altogether and focus entirely on levying a fine. The maximum in New York for a Class E felony is $5,000. The fine could run concurrently for all 34 counts, meaning it would total $5,000. Or it could run consecutively, meaning it would add up to $170,000.

The sentencing is complicated all the more by whether the penalty should be held in abeyance pending the outcome of Trump’s likely appeal of the conviction and to avoid the damage he and Republicans in general would suffer if his campaign activities were to be curtailed.

Fortunately for us, we are not Judge Juan Merchan. Most of us do not have his background and knowledge, nor the time he and his clerk have devoted to studying this.

There’s no getting around that Trump is a special case. The coverup helped along by the business fraud of which he has been found guilty could have altered the outcome of the 2016 presidential race. Perhaps he more than other individual has the chutzpah and the social media resources to criticize the court even as he is being tried. And any day now the Supreme Court will rule on his appeal that in effect would put him above the law in the separate election subversion case.  If he succeeds in that effort, he will put the lie to We Are a Nation of Laws — That Need to Be Equally Applicable to All.

But if we aspire to the ideal of “equally applicable to all,” a highly worthy standard in the eyes of a great majority of Americans, what would you say the sentence to be handed down on July 11 should be?