Wayne Unger
On Friday 10 January, Justice Juan Merchan, who presided over the trial in a New York state court, sentenced president-elect Donald Trump to an unconditional discharge for all 34 felony counts of falsifying business records in the first degree.
In his statement to the court, Trump maintained the point he had made throughout the prosecution, that the whole case was a political witch hunt. “The fact is, I’m totally innocent,” he said, via a video appearance in the court.
During the sentencing, Merchan said he was keenly aware of the unique set of circumstances before him and the country. He characterised the trial as ordinary while acknowledging the context of the case was extraordinary.
“Never before has this court been presented with such a unique and remarkable set of circumstances.”
The sentencing brings this phase of the case to an end. Once the sentence is officially entered in a final judgment, Trump can appeal the case. Trump’s attorney, Todd Blanche, made clear during the sentencing that Trump intends to appeal.
Failure to block sentencing
On 30 May 2024, a New York County jury found Trump guilty on 34 counts of falsifying business records in the first degree. That constituted a Class E felony in the state of New York, when the falsification is committed with an intent to defraud, commit another crime or to aid or conceal the commission of another crime.
Class E felonies carry a potential penalty of up to four years in prison and a fine up to US$5,000 for each count. Trial courts reserve discretion, however, to impose a sentence that accounts for other factors, such as the defendant’s criminal history.
In recent court filings, Trump sought to get his guilty verdict thrown out, arguing that the US Supreme Court’s recent decision on presidential immunity in criminal prosecutions meant he could not be found guilty.
On 1 July 2024, the US Supreme Court had concluded that the Constitution provides “absolute immunity from criminal prosecutions for actions within his … constitutional authority.” The court had also concluded that presidents hold “at least presumptive immunity from prosecution for all his official acts” and “no immunity for unofficial acts”.
To be clear, Trump was convicted of unlawful conduct that occurred before his first term as president. And while it appears that the Supreme Court’s July 1 ruling applies to both state and federal criminal prosecution, the court held there is no immunity for unofficial acts, which the falsification of business records undoubtedly is.
On 3 January 2025, Merchan rejected Trump’s argument about presidential immunity because the Supreme Court’s immunity decision is not applicable in Trump’s New York case.
On 9 January 2025, New York’s highest court declined to block Trump’s sentencing. The US Supreme Court late in the same day denied Trump’s emergency bid to halt the sentencing, saying in its order that “the burden that sentencing will impose on the president-elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing”.
Indeed, Merchan had expressed little willingness to impose prison time for the president-elect. In the order rejecting Trump’s presidential immunity argument, Merchan said, “It seems proper at this juncture to make known the court’s inclination to not impose any sentence of incarceration”.
Even if Merchan imposed prison time, many constitutional law scholars, including myself, argue that Trump’s sentence would, at minimum, be deferred until after his next term in the Oval Office.
Rather, Merchan imposed “unconditional discharge” as a sentence. That means there are no penalties or conditions imposed on Trump, such as prison time or parole.
Serving the public interest
According to New York law, a court “may impose a sentence of unconditional discharge … if the court, having regard to the nature and circumstances of the offence and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate”.
Regarding Trump’s case specifically, Merchan wrote, “A sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow [Trump] to pursue his appellate options.”
Put simply, it appears Merchan, having considered the totality of the circumstances, including Trump’s election to a second term as president, concluded, as is his right as a judge, that it was in the best interest of the public not to imprison Trump.
Generally, trial courts reserve a tremendous amount of discretion when it comes to imposing sentences. Legislatures can, and often do, set sentencing guidelines, prescribing what penalties trial judges can impose. It is clear in this case that the New York State Legislature allows trial judges to, at their discretion, deliver “unconditional discharge” as a sentence.
Uniquely, Trump had sought dismissal of his guilty verdict before his sentencing. Normally, criminal defendants do not have a legal right to appeal their verdicts until a final judgment is entered against them. In criminal law, a final judgment must include the defendant’s sentence.
But, of course, this is not your ordinary criminal case. As Merchan hinted, moving forward with the sentencing favoured Trump because it would result in a final judgment being entered against him, thus enabling him to properly appeal his conviction.
Wayne Unger is an Assistant Professor of Law at Quinnipiac University, Connecticut
The above first appeared in The Conversation and is republished with permission
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