The people have spoken; Donald Trump will be our next president. But the people also spoke last May when Trump was convicted on 34 felony counts of falsifying business records in connection with the 2016 election. That wasn’t quite so many people as last week—12 jurors, against roughly 76 million voters. But no less than elections, juries are a vital part of American democracy. “The jury,” observed Alexis de Tocqueville in Democracy in America, “is pre-eminently a political institution; it must be regarded as one form of the sovereignty of the people.”
To honor that sovereignty, New York State Judge Juan Merchan—who’s delayed sentencing Trump three times, and on November 12 put off for one week deciding how to proceed—should sentence Trump to a week at Rikers Island, to be served before Trump is inaugurated president on January 20.
I’ve been known to dabble in satire, but I’m deadly serious here, just as I was last June when I recommended that Trump serve six months at Rikers (which is where New York State sends felons tried in New York City and sentenced to less than one year). Now, of course, the United States government can no longer spare Trump for six months. But it can still spare him for one week. Rikers was good enough for Trump’s former chief financial adviser Alan Weisselberg, age 77, who last spring booked himself three months there after perjuring himself on Trump’s behalf (in an unrelated civil fraud case, now under appeal, in which Trump was fined $355 million). Rikers should be good enough for Trump too.
The Justice Department’s Office of Legal Counsel concluded in 1973, and reaffirmed in 2000, that the Constitution does not permit the prosecution of a sitting president. That would pose a problem if Trump were a sitting president, but he isn’t. For the next 66 days Trump remains a private citizen. Subtract seven days at Rikers, and Trump will still have 59 to plan his second term (inasmuch as Trump plans anything). Indeed, amid all the hurly-burly at Mar-a-Lago the president-elect might appreciate getting a little time to himself. He can bring his Secret Service detail so he doesn’t get shanked in the shower.
Judge Merchan granted this week’s stay at the request of both Trump’s defense lawyers and the prosecution, who said they needed a little time to process that a convicted felon is now president-elect. I know just how they feel! Already Merchan was grappling with the Supreme Court’s July decision extending an unprecedented and ahistorical degree of prosecutorial immunity to presidents even after they leave office. That ruling prompted Trump’s defense lawyers to argue that some criminal evidence used in the trial (spelled out here) was protected by said immunity, including a conversation Trump had as president with his communications director Hope Hicks about paying off Stormy Daniels (“It would have been bad to have that story come out before the election”).
Do a president’s official duties include cutting a $130,000 check to silence a porn actress he shagged? That doesn’t pass the laugh test. But in a July 25 memorandum of law, the prosecution said that even if Merchan excluded from consideration all the evidence Trump wants removed (including some tweets!), “there would still need be no basis for disturbing the verdict,” because “the evidence that he claims is affected by the Supreme Court’s ruling constitutes only a sliver of the mountains of testimony and documentary proof that the jury considered in finding him guilty.”
Before November 5, no plausible legal doctrine posed an obstacle to sentencing Trump to jail. Merchan pushed sentencing past that date solely to avoid influencing the election. With November 5 come and gone, the only altered fact is that Trump is president-elect. There’s a MAGA mantra that “the only verdict that matters is the one at the ballot box,” but that just isn’t true. Trump’s May 30 verdict matters too. New York State compelled 12 people—it didn’t ask—to interrupt their lives for two and a half months to weigh criminal evidence against Trump. They concluded Trump was guilty, convicted him—and for their troubles got threatened with doxxing and worse by Trump supporters. “We need to identify each juror,” read one social media post. “Then make them miserable. Maybe even suicidal.” On another platform, a Proud Boys chapter posted one word: “War.” Would you like to tell these jurors that their deliberations will be tossed out because the defendant is too popular?
Back in July, I cited a survey by Norman Eisen, House Judiciary Committee counsel for Trump’s first impeachment, about whether other New York State defendants went to jail after being convicted of the same crime (falsification of business records). The answer, going back to 2015, was that about 10 percent did. That turns out to be a lowball. In October The New York Times reported the odds were more like 30 or 40 percent. Among those who were convicted in Manhattan (like Trump) and then sent to jail—typically for six months—nearly all were (like Trump) first-time offenders. And nearly all of those who avoided jail copped a plea, which Trump will never do.
Add to these considerations Trump’s extreme bad behavior during the trial—the man violated gag orders 10 times—plus Trump’s deranged threat in October to sic the National Guard on “the enemy within”—and it becomes very hard to see how Merchan can justify not jailing Trump. Trump’s talk of retribution is not idle. During the trial, New York District Attorney Alvin Bragg received 56 “actionable threats.” All these latter-day Brownshirts were egged on by Trump, who has repeatedly said that Bragg himself “should be prosecuted.”
If Merchan sentenced Trump to jail, might not that ruling be overturned? Sure, that could happen, either at the New York Court of Appeals or the Supreme Court. But the court would have to explain why. Where in the Constitution, or in case law, does one find special protection for a person who is not yet president? “It wouldn’t be seemly” does not constitute a legal argument.
Merchan’s self-imposed deadline to sort out constitutional questions is November 19. Trump is due to be sentenced November 26, but that deadline may slide too. Trump’s strategy has been delay, delay, delay until January 20, when he can extract from the Bible on which he places his left hand his get-out-of-jail-free card. Merchan mustn’t let that happen. The sovereignty of the people will be violated if Trump evades a jail sentence. And with the weeks flying by, Merchan may have no choice but to park Trump at Rikers during the week between Christmas and New Year’s. That would be a real shame.