Trump’s single biggest threat to his freedom is his Manhattan trial: criminologist

Donald Trump has always been terrified by the thought of going to prison. At the same time, his fear of imprisonment has always been mitigated by his Houdini-like ability to evade the administration of criminal justice.

Ergo, Trump’s myriad repeated motions — legitimate and illegitimate — to delay or dismiss his four criminal trials from ever coming to fruition.

Most notable is whether Trump is immune from criminal prosecution on charges of trying to overturn the results of the 2020 election. Although the oral arguments before the Supreme Court are to be heard on April 25, we probably will not have the answer until the end of the current session in late June or early July.

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These tactics have always been motivated by Trump’s shamelessness and dogged determination to keep his never-ending lawlessness and scamming alive. In order to do so, he must keep his derriere unincarcerated and/or return to the White House as the 47th president of the United States.

Trump has also been more afraid of the Manhattan criminal case than the other criminal cases slated for courtrooms in Florida, Georgia and Washington, D.C.

This is because Trump has correctly or incorrectly believed that, in those cases, there would likely be one juror or more out of 12 that would emerge to prevent guilty verdicts — remember: they must be unanimous — from materializing.

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Up until now and before the selection of the criminal jury begins on Monday in The People of the State of New York vs. the former POTUS, did Trump ever have to seriously confront the reality of criminal imprisonment for one day, let alone, for the rest of his life.

According to New York law, if convicted of the 34 criminal counts each subject to as many as four years of imprisonment to be served consecutively, Trump could be looking at as many as 136 years of captivity.

Realistically, that would never happen to Trump — or anyone else for this type of election interference, campaign corruption and financial criminality. For any other average person convicted on all of the counts, the sentence would probably be from two to four years, served concurrently.

But I suspect that Judge Juan Merchan, who was recently sued by Trump over his handling of the case, will at maximum impose a sentence of home confinement rather than any formal type of criminal incarceration.

This penal leniency in sentencing will come from a judge who has endured months of Boss Trump railing against him and repeatedly attacking his daughter. This unseemly behavior finally resulted in a “gag order” from the judge to protect his offspring. It also resulted in another frivolous denied motion to an appellate court by one very desperate Trump hoping for a stay or looking for any kind of delay.

Manhattan Supreme Court Justice Juan Merchan in 2011. Marc A. Hermann/New York Daily News/TNS

My reasoning about Merchan’s leniency is twofold:

First, Merchan — like Judge Scott McAfee in the Fulton County, Ga., case against Trump and U.S. District Judge Tanya Chutkan overseeing the Jan. 6 case in D.C. — have all been adjudicating fairly. They have also been bending over backwards on behalf of Trump for a variety of reasons.

(This is in stark contrast to Judge Aileen Cannon overseeing the Florida stolen classified documents case who has been acting unfairly on behalf of Trump and with malice against the prosecution.)

Second, unlike Trump’s three other criminal cases I cannot imagine any judge sentencing a former president to prison for the Manhattan crimes.

But home confinement — however luxurious — would nevertheless mean Trump loses his freedom.

Up to now most thinking people have supposed that the Manhattan trial would be the least significant of the four criminal trials Trump is facing as he runs for president here in 2024.

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Compared to the three other trials – two about Trump’s effort to overturn the results of the 2020 presidential election and one for allegedly stealing classified documents and obstructing justice – the charges, on balance, don’t seem as legally or politically fraught.

However, the significance of the Manhattan criminal trial both legally and politically is about to make history.

There are several reasons for this.

For openers: time.

The misleading “hush money”-labeled criminal case has become not only the first but possibly the only criminal trial of Trump to be resolved before people start voting, which in some parts of the country will be in September.

Unlike the other three criminal matters that occurred during or after his presidency, the issues at play in the Manhattan trial occurred in 2016. They took place just weeks before the 2016 election and immediately after the release of theAccess Hollywood tape, which revealed Trump making lewd and obscene comments about women.

Although the former president’s falsification of business documents and his fraudulent payments for services rendered continued like monthly clockwork during the first year of the Trump administration.

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Importantly, unlike the three other criminal indictments that were “speaking indictments,” or went beyond the elements of the charges, the Manhattan indictment following New York law did not. It only provided the minimal identification or listing of the 34 counts against Trump.

For example, without the lengthy and detailed indictments laying out the evidence in greater detail, most Americans do not understand why the misdemeanor crimes of paying off one porn star and one playboy bunny to keep them silent about their sexual liaisons with Trump became felony crimes.

Similarly, this case also involves election interference and campaign fraud – the kind that may have helped Trump get elected president in the first place, in 2016. In other words, this case is not merely about falsifying business documents and tax records.

Trump’s interference in the 2016 presidential election was not limited to the burying of negative information that at the time would have been detrimental to his campaign victory, but it also includes evidence of Trump paying his then-”fixer” Michael Cohen to hire an IT firm to rig early CNBC and Drudge polls to favor Trump in 2015 — and then stiffing RedFinch Solutions $50,000 for its services rendered.

Not unlike the House Select Committee’s public hearings on January 6, where all the witnesses who testified against Trump were from the former president’s inner circles, the same will essentially be the case in the Manhattan trial. At this trial, we can expect several of the witnesses testifying against Trump to be part of the conspiracy to cover up his sexual affairs from wife Melania as well as the general public — a general public that may have voted differently had they known Trump was cheating on the future first lady with an adult film actress.

Unlike the House Select Committee hearings, which were televised but paid attention to by about 23 percent of the electorate and changed few opinions about Trump’s culpability, the untelevised criminal trial in Manhattan will be followed much more closely by most Americans.. And whether convicted by a jury of his peers or set free by a hung jury, Trump stands to suffer significantly from some six weeks of gavel-to-gavel news coverage of his criminal behavior.

As the Manhattan trial is about to get underway, there does seem to be some poetic justice at play. Just as District Attorney Alvin Bragg was the first to bring a criminal indictment against a former president of the United States he has also become the first law enforcement official to criminally prosecute the 45th president of the Untied States.

It is also worth noting that Bragg had no problem with any of the other criminal cases going ahead of his trial as he has always regarded the 34 felony criminal counts in the Manhattan case as ordinary or garden variety white-collar crimes. Rather than the more serious crimes involved in Trump’s three other criminal prosecutions.

On the one hand, I am feeling good that people will finally learn all about election interference and the “catch and kill” scheme that is at the heart of the Manhattan trial. Not to mention the collaboration between Trump and the National Enquirer news organization.

On the other hand, I am disappointed that Bragg’s team of prosecutors had not investigated deeper, or if they had done so, that they had decided not to bring additional counts against Trump involving another type of election interference.

Specifically, I am referring to candidate Trump’s collaboration with the National Enquirer to manufacture scathing front-page stories about two of Trump’s most competitive opponents in the 2016 presidential race. Namely, Republican Sen. Ted Cruz and former Secretary of State and Democratic candidate Hillary Clinton.

To recap where we are with respect to legal accountability and the administration of criminal justice for the 2024 presumptive nomination for president:

• In the short term, as the Manhattan trial finally begins, the Liar-in-Chief and his lawyers' efforts to delay, disrupt, and discredit one of the four criminal cases against Trump have at long last been exhausted.

• In the longer term, at least for now, Trump and the GOP’s repetitive attacks to delegitimize the justice system and rule of law as a whole, as well as their efforts to spread fear throughout those institutions tasked with holding Trump accountable for his anti-democratic behavior, are still alive and unwell.

Hopefully, the Manhattan trial will begin to turn the tide against Republican lawlessness, corruption and authoritarianism.

Gregg Barak is an emeritus professor of criminology and criminal justice and the author of several books on the crimes of the powerful, including Criminology on Trump (2022) and its 2024 sequel, Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy.