Can Trump still go to jail?

Donald Trump’s return to the White House effectively slammed the door on the two cases involving federal criminal charges against him.

A state case against him for allegedly conspiring to interfere in Georgia’s 2020 election will be put on hold until after his term ends — if it’s still alive until then.

But next week, the fate of the remaining case – his conviction on 34 felonies in New York – will be decided. It could stand, or it could be swept away in the same political and legal tides that have done it let him escape the others.

Justice Juan Merchan will decide by Tuesday whether to grant Trump’s pre-election request to throw out his ruling. Should Justice Merchan side with Trump, it would all but wipe out his slate of criminal issues.

But should the judge uphold the verdict, he would proceed to sentencing later this month. That would likely trigger even more delay attempts by Trump and open an unprecedented new front for America’s criminal justice system.

“This is really uncharted territory,” said Anna Cominsky, a professor at New York Law School.

In May, a New York jury found Trump guilty of falsifying business records. The convictions stemmed from Trump’s attempt to cover up kickbacks to his ex-lawyer, Michael Cohen, who in 2016 paid an adult movie star to keep quiet about an alleged sexual encounter with Trump.

Trump’s lawyers argue that a recent ruling by the US Supreme Court granting presidents some immunity from criminal prosecution applies to certain aspects of his New York case and therefore the charge and conviction should be thrown out.

During the trial, Justice Merchan rejected attempts by Trump’s lawyers to throw out the case on immunity grounds. But that was before the US Supreme Court ruled in Trump’s favor this summer – and before Trump decisively won re-election.

Justice Merchan has set a deadline of November 12 to decide whether to grant Trump’s request.

If he throws out the sentence, that will be the end of the matter.

But if he denies the defense’s request, Trump’s much-delayed sentencing will remain scheduled for Nov. 26.

Even if Justice Merchan upholds the verdict and holds the scheduled sentencing, Trump’s team is almost certain to seek more delays and appeals.

Todd Blanche, Trump’s lead lawyer, did not respond to inquiries about whether he planned to seek a delay.

Because Trump will be tied to a presidential transition and the legal issues of impeaching a president are so complex, some researchers see little chance it will stay on the calendar.

“I think the most likely outcome in the state case is for the judge to delay sentencing until after Trump’s term in office,” said Daniel Charles Richman, a professor at Columbia Law School.

“To actually impose a sentence would raise any number of messy questions in the short term,” including political ones, he said.

If Trump finds himself in a Manhattan courtroom later this month, deciding his fate would still be an unprecedented challenge.

Under the law, Trump faces a range of sentences, including fines, probation and up to four years in prison. But many options are rendered impractical by his impending return to the White House.

“Sentencing a sitting president can be one of the most complicated, arduous sentencing decisions you can imagine,” Ms. Cominsky said.

“It’s hard to imagine what sentence could be imposed that wouldn’t impede a president’s ability to do their job or compromise the president’s security.”

Few expect Justice Merchan to sentence Trump to a stint behind bars at this point.

“He is a 78-year-old man with no criminal history who has been convicted of a non-violent crime,” said retired New York Supreme Court Justice Diane Kiesel. “I don’t think a judge would give someone under those convictions a prison sentence.”

Even if Justice Merchan reached such a verdict, Trump’s team would almost certainly appeal it and delay the actual sentence.

Trump could leave a sentencing hearing with the legal answer to a slap on the wrist. Justice Merchan could ask the former president to pay a relatively small fine in the three- or four-figure range.

He could also give Trump an unconditional discharge; “basically goodbye,” as Justice Kiesel puts it.

The only thing that is certain is that Trump cannot make this conviction go away on his own.

Trump has previously explored the possibility of pardoning himself from potential criminal charges and could do so for his federal charges when he becomes president in January.

But he cannot pardon himself in New York, since the conviction was in state court.

His fate is currently in the hands of the court. But regardless of the outcome, Trump is likely to avoid the most serious penalties he faces.

“He’s a very lucky man,” Judge Kiesel said.