We all have a huge normalcy bias — that is, the refusal to contemplate an imminent disaster. So it’s hard to get your head around the idea that we may well be facing an unprecedented constitutional crisis come November. But then, none of what’s going on in American politics these days is normal.
In Donald Trump’s case, we’ve already sailed way past the edge of the known world. Yes, all things considered, it’s unlikely that a former president — much less a potential president-elect — would find himself in jail or prison. Of course, it’s also unlikely that a former president would find himself facing four separate criminal trials. Yet here we are.
So what might really happen in Trump’s New York criminal trial? How might it play out if he is treated no better — but no worse — than any other criminal defendant?
Let’s start with Trump’s difficulties following the judge’s orders, both in the courtroom and outside it. Judge Juan Merchan, who is presiding over Trump’s New York criminal trial, has issued a gag order preventing Defendant Trump from attacking people like witnesses and court personnel, though the judge has allowed Trump to continue to attack both him and the district attorney. If Trump violates this order —and he probably already has — he can be fined or imprisoned for contempt.
Normally, a judge might, depending on how serious the violation is, begin by issuing a stern warning and, possibly, a fine. If the judge’s orders continue to be ignored, the penalty will quickly escalate. Though sometimes it’s only for a day and a judge will allow the person to purge their contempt by humbly apologizing and promising never to do it again, openly defiant people who repeatedly violate court orders eventually end up in jail — even ex-presidents.
Judge Merchan will likely have even less tolerance for Trump’s courtroom outbursts. No criminal judge will allow a defendant to control the courtroom, intimidate witnesses and influence the jury. Trump has already been warned about his behavior, and Merchan will react firmly if it continues. Because this behavior is so serious and threatens the integrity of the trial, there will be no series of escalating penalties. Instead, judges handle these situations by either removing a disruptive defendant from the courtroom or by ordering the defendant physically gagged. There is even Supreme Court precedent holding that gagging an unruly defendant is sometimes “the fairest and most reasonable” option in these situations.
Suppose Trump is convicted. Will he actually go to jail?
Lots of people think this is impossible, but it would certainly be possible for any other defendant. In Trump’s case, he could, theoretically, be sentenced to anything between probation and a maximum sentence of 20 years if convicted on all counts. A sentence of 20 years, however, is extremely unlikely — almost impossible, in fact. The maximum Trump faces is probably four years, and his actual sentence, for several reasons, would likely be substantially less. It might even be a term of probation, although, considering Trump’s complete lack of remorse, some sort of custodial sentence is likely.
Convicted defendants can be immediately sent to jail pending sentencing. This is actually quite common after a felony conviction. Alternatively, a convicted defendant may remain free until sentencing. A judge may even grant bail pending appeal, which means that a defendant may remain outside of custody, even after being sentenced, until the appeal has been heard.
Trump’s case would normally be a good candidate for bail pending appeal. But much will depend on Trump’s behavior during and after trial, because courts do not release people, especially after they have been convicted, if the judge believes they represent a threat to society. Judge Merchan has already warned Trump to “refrain from making comments or engaging in conduct that has the potential to incite violence, create civil unrest, or jeopardize the safety or well-being of any individuals.” If Trump makes any effort to whip up his followers, as he did before the events of Jan. 6, 2021, he will almost certainly find himself sent directly to jail.
So are we likely to see Donald Trump gagged or jailed? That all depends on Trump. Perhaps he will behave himself. But these things are real possibilities for the former commander in chief, just as they are for any criminal defendant.
The rule of law can sometimes be a harsh mistress. There is a very real possibility that one of our two major presidential candidates will be a convicted felon and serving time by November. That’s bad enough. But if he is elected despite a conviction, then constitutional crises don’t come much bigger than that.
Yes, jailing a former and possibly future president would be unprecedented. But these are unprecedented times, and unprecedented things are going to happen. Trump facing jail, especially for contempt of court, is one of the less bizarre scenarios we are likely to see play out in the coming months.
Chris Truax is a charter member of the Society for the Rule of Law and an appellate attorney.
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