New York state trial judge Juan Merchan is scheduled to sentence Donald Trump on September 18, after the former president’s May 30 conviction by a jury of 34 felony counts of falsifying business records in the first degree. Judge Merchan could decide to delay the sentence pending legal proceedings regarding the U.S. Supreme Court’s decision on presidential immunity. [UPDATE 09-06-24 1:30 pm: Judge Merchan today postponed the sentencing until November 26.] But when he proceeds, there is only one appropriate course, considering all the relevant facts and legal issues: Judge Merchan should sentence Trump to a term of incarceration. 

The central reason Trump deserves imprisonment is because the object of his crimes was enormous. In fact, it was the greatest prize in our nation: the presidency of the United States. And the victims of his illegal conduct were all of the American people, especially voters in the 2016 election.

Some pundits have suggested that Judge Merchan should or would game out the potential political impact of various sentences, as well as of the timing of the sentence. But Judge Merchan’s record strongly suggests he will follow only the law. 

For the crimes of which he was convicted, Trump faces up to four years of imprisonment. 

Under state law, Judge Merchan is charged with reviewing a report from the New York City Department of Probation, which interviewed Trump after his conviction, and hearing the arguments of lawyers for Trump and those representing Manhattan District Attorney Alvin Bragg’s office. Merchan is required to consider a range of factors in any sentencing, including a defendant’s personal background and prior criminal activities, whether the offense was violent, and whether the defendant has shown remorse.

Trump clearly has not shown remorse, and it’s doubtful he ever will.  Trump’s repeated violations of Judge Merchan’s orders during the trial, and resulting ten contempt citations, also weigh against him.

It also cannot be denied that Donald Trump has a serious history of illegal activity.

In addition to his criminal conviction in New York, Trump stands charged with felonies in Georgia for seeking to unlawfully overturn the results of the 2020 election. He’s also been indicted by a federal grand jury in Washington DC for more felonies in connection with his efforts to stay in office in 2020.  And he was indicted in Florida on federal felony charges of stealing highly classified documents.

There is much more.  Trump’s central business enterprise, the Trump Organization, was in January 2023 fined $1.6 million, the maximum penalty, by a New York state court after the company was convicted by a jury of 17 criminal felonies, including tax fraud and falsifying business records, resulting from a decade-long scheme to provide senior company executives with apartments, car leases, and money for personal expenses without declaring taxable income.

Trump himself was found liable in February 2024 by a New York state judge for civil fraud, for inflating his net worth to obtain favorable terms from banks and insurance companies, and he was ordered to pay a $355 million penalty. In May 2023, a New York federal jury in a civil case ordered Trump to pay E. Jean Carroll $5 million for battery and defamation after it found that Trump sexually abused Carroll in a department store dressing room in 1996.

In November 2016, Trump paid $25 million to settle civil charges by New York’s attorney general that his unaccredited real estate school, Trump University, defrauded its students. And in December 2019, Trump paid $2 million and was forced by New York’s attorney general to shut down the Donald J. Trump Foundation in a civil settlement for illegally misusing charitable donations for political and personal purposes.

Trump, as president, was also impeached twice by the House of Representatives. In the first case, Trump was caught seeking to condition the delivery of U.S. aid to Ukraine on that country announcing it would investigate 2020 campaign rival Joe Biden. In the second instance, Trump was impeached for “inciting violence against the government of the United States” in his effort to deny and overturn his 2020 election loss to Biden. (In the first case, 48 of 100 senators voted to convict Trump after trial, and in the second, 57 senators voted guilty — both times short of the 67 votes required for conviction.)

That’s a pretty lengthy record of law-breaking over about a decade, and much of it relates to cheating in elections, the same kind of conduct underlying the 34 counts of conviction. Judge Merchan can consider all these matters. But technically, Donald Trump will stand before the court as a first offender.

Which brings us back to the offenses themselves. Falsifying business records, even in the first degree, doesn’t sound like the most vicious of crimes, even if it is a way for corporate crooks to deceive the public and government oversight agencies. What makes Trump’s crimes so serious, though, is the reason he falsified all those business records.

Trump falsified business records to conceal from American voters in the 2016 election that he was paying hush money to porn star Stormy Daniels, in order to keep her quiet about a sexual encounter they allegedly had in 2006. Trump engaged in such deceptive criminal acts, as the New York prosecutors contended, because he believed that disclosure of that information might have hurt his chances of being elected president. (The Wall Street Journal exposed the Trump-Daniels encounter and resulting hush money scheme about a year after Trump was inaugurated.)

The presidency is, for starters, a huge personal prize. The winner goes to the center of the universe, and is given royal treatment, if desired, which by Trump it definitely was. Don’t think that Trump didn’t love the free mansion, aircraft, limos, food, servants, staff, and round-the-clock security. The U.S. president is also enshrined in monuments and the history books.

But it’s not just about self-aggrandizement and the immediate perks of office. A tenure in the Oval Office provides the opportunity for a rapid increase in wealth over time. Notwithstanding the wholesome image of Jimmy and Rosalyn Carter in their modest Plains, Georgia, house, ex-presidents tend to get pretty rich, even if they entered office relatively poor. 

For a rapacious opportunist like Donald Trump, the presidency has brought massive windfalls. At the time he started his run for the White House in 2015, Trump was a wealthy real estate developer, drawing on the empire left to him by his father. But he had seen his share of business failures and bankruptcies, and had recently participated in sketchy ventures like multi-level marketing schemes selling vitamins and videophones, plus his scam real estate investing “university.” He was fired as host of the NBC reality show “The Apprentice” that summer. 

Once in the White House, Trump made millions from foreign governments and corporate executives who stayed at Trump properties, many hoping to curry favor with the powerful, transactional president. The CEO of T-Mobile made a point of taking an extended residency at the Trump Hotel in Washington, and later got the good news that the Trump Justice Department, as well as the FCC, had approved his company’s merger with Sprint.  The Secret Service and other federal agencies also spent millions at Trump properties to be by the president’s side.

While Trump’s earnings from his businesses may nevertheless have declined while he was in office, Trump’s post-presidency has been a huge bonanza. Much of the former president’s net worth is in the company that owns Truth Social, the networking site that makes almost no profit, yet attracts  billions from MAGA faithful investors who want to be part of his world. Trump owns about 60 percent of the equity in that company, even though it was built by others.

MAGA buyers also bolster Trump revenues in a Trump-endorsed Bible, Trump NFTs depicting the former president in various colorful costumes, Trump sneakers, Trump watches, and purported pieces of the suits Trump wore when he debated Joe Biden and when he took his mug shot in Atlanta. A Trump family crypto venture will be another magnet for MAGA investors. Trump-connected entities also are reportedly well paid via the hard-earned dollars that small donors give to Trump’s political campaigns.

Without his term in the White House, Trump would not have the huge, devoted army of followers ready to send their money to whatever venture Trump touts in a given week.

Trump’s daughter Ivanka is also well taken care of, with a fund controlled by Saudi Arabia’s Prince Mohammed having put a reported $2 billion in a private equity firm launched by her husband Jared Kushner, after Kushner showed support for the repressive Saudi leader during his White House tenure; the prince may be betting on more favorable treatment if Trump gets elected again.

But the possible impact of Trump’s crimes goes well beyond the financial riches the presidency brought him and his family. 

An additional factor that a judge in New York state must consider is the impact on the victim. In the case of The People of the State of New York v. Donald J. Trump, the victim was American democracy, American voters, and their right to make informed choices.  And the impact was potentially profound. 

Every four years Americans spend billions of dollars, and billions of hours of work and anxiety, over the election for president. The outcome has enormous impact on issues like taxes, health care, abortion, climate change, immigration, and America’s role in the world.

Maybe the hidden hush money payments did not decide the 2016 election. Perhaps the disclosure of Trump’s affair with Stormy Daniels would not have made a big difference to voters who already heard numerous reports about Trump’s infidelities, as well as Trump’s repeated crude behavior toward and remarks about women, openly in public, in victim accounts to the media, and in the leaked “Access Hollywood” tape.

But because Trump won by razor-thin margins in the critical states of Wisconsin, Michigan, and Pennsylvania, it is possible that Trump’s cover-up of his liaison with Daniels did make a difference.

Trump’s concealment robbed America voters of information that might have influenced their choice in 2016. It stole from Hillary Clinton voters a better chance for their candidate to prevail and govern the country.

Trump’s crime thus might have had an extraordinary impact on U.S. history and world events.  Without a Trump victory over Hillary Clinton, there would have been no Supreme Court overturning of Roe v. Wade, no January 6 attack on the U.S. Capitol, no senseless pardons and commutations for remorseless con artists and violent offenders, and much more. 

Sending Trump to a New York jail or prison would be complicated by the need to provide him with constant Secret Service protection. The logistics, though, can be addressed.  The confinement need not be long. The judge likely would delay implementation of the sentence until after Trump pursued any appeals, which also would allow Trump to campaign unfettered through the resolution of the 2024 election. 

But allowing Trump to walk free after being convicted of stealing the most valuable treasure we have would be a profound miscarriage of justice.

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David Halperin, a lawyer, previously served on the staffs of the White House National Security Council and the Senate Intelligence Committee.