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Guest Essay

By Norman L. Eisen

Mr. Eisen is the author of “Trying Trump: A Guide to His First Election Interference Criminal Trial.”

For all the attention to and debate over the unfolding trial of Donald Trump in Manhattan, there has been surprisingly little of it paid to a key element: its possible outcome, and specifically, the prospect that a former and potentially future president could be sentenced to jail time.

The case — brought by Alvin Bragg, the Manhattan district attorney, against Mr. Trump — represents the first time in our nation’s history that a former president is a defendant in a criminal trial. As such, it has generated lots of debate about the case’s legal strength and integrity, as well as its potential impact on Mr. Trump’s efforts to win back the White House.

A review of thousands of cases in New York that charged the same felony suggests something striking: If Mr. Trump is found guilty, incarceration is an actual possibility. It’s not certain, of course, but it is plausible.

Jury selection has begun, and it’s not too soon to talk about what the possibility of a sentence, including a jail sentence, would look like for Mr. Trump, for the election and for the country — including what would happen if he is re-elected.

The case focuses on alleged interference in the 2016 election, which consisted of a hush-money payment Michael Cohen, the former president’s fixer at the time, made in 2016 to a porn star, Stormy Daniels, who said she had an affair with Mr. Trump. Mr. Bragg is arguing that the cover-up cheated voters of the chance to fully assess Mr. Trump’s candidacy.

This may be the first criminal trial of a former president in American history, but if convicted, Mr. Trump’s fate is likely to be determined by the same core factors that guide the sentencing of every criminal defendant in New York State Court.

Comparable cases. The first factor is the base line against which judges measure all sentences: how other defendants have been treated for similar offenses. My research encompassed almost 10,000 cases of felony falsifying business records that have been prosecuted across the state of New York since 2015. Over a similar time period, the Manhattan D.A. has charged over 400 of these cases. In roughly the first year of Mr. Bragg’s tenure, his team alone........

© The New York Times