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Donald Trump is determined to avoid jail, but if he does get handed a prison sentence after his conviction on 34 felony counts in New York last week, the former president’s inner circle is certain he will lay the blame squarely at the judge’s feet, sources familiar with the matter said.
The precise way Trump might blame the judge, Juan Merchan, remains unclear because Trump has been avoidant of the issue and the matter was not resolved when he huddled with his top advisers at a Trump Tower meeting immediately after the verdict on Thursday, the sources said.
But Trump is likely to double down on his attacks against Merchan, directing his supporters at rallies and in Truth Social posts to take up their grievances with the judge, one of the sources added.
The consequences of Trump’s likely rhetoric are difficult to predict. Trump has been railing against Merchan for months as being unfair and in conspiracy cahoots with the Biden administration to prevent him from campaigning – and nothing concrete has happened.
Still, Trump’s supporters have a history of making threats against judges Trump has assailed, including death threats to Tanya Chutkan, the US district judge who is presiding in his federal 2020 election interference case, and to the chambers of the New York judge who oversaw his civil fraud trial.
Trump believes – correctly – that the ultimate decision with sentencing rests with Merchan, who has wide discretion to sentence him to fines or probation on the low end, to a carceral sentence on the high end, regardless of what prosecutors might request.
That reasoning would be the basis for Trump to hold the judge responsible for any fallout, in the event he hands down a jail term days before the Republican national convention – even if the sentence would almost certainly be stayed pending appeal.
Trump has already spent weeks railing against Merchan, taking advantage of the fact that the judge himself is not protected by the gag order. Both before and during the trial, Trump slammed the judge’s rulings as unfair and biased, and falsely suggested he was trying to stop him campaigning.
Just one day after the trial, Trump appeared to open a new front against Merchan in freewheeling remarks at a news conference at Trump Tower, where he suggested Merchan looked like an “angel” but was really the “devil”.
If a jail sentence does come, one of the sources said, they expected Trump to lash out in anger. But Trump has also been careful to not explicitly threaten or make foreboding warnings against Merchan to stave off prison.
On Fox News Sunday, Trump said the public would not stand for him being sent to prison. “I’m not sure the public would stand for it. I think it would be tough for the public to take. At some point, there’s a breaking point”, he said, though the campaign was quick to clarify he was talking about the election.
To some degree, Trump has managed to put Merchan exactly where he wants him.
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Trump was in effect found guilty of using an unlawful hush-money scheme to influence the outcome of the 2016 election, which means if Merchan sentences him to anything less than jail, it could spark backlash that it did not encapsulate the gravity of Trump’s criminal conduct.
But if Merchan does actually sentence Trump to jail, the judge would be thrust forward by Trump as responsible for any fallout and any unrest from his supporters who have a history of engaging in political violence merely on the former president airing grievances.
At sentencing, Merchan will have the additional decision of whether to punish Trump not just for the conviction but also his clear lack of remorse and his repeated violations of the gag order, which would be reflected in Trump’s pre-sentencing report.
In New York, defendants convicted of felonies or serious misdemeanors are required to meet with a probation officer, who conducts a lengthy investigation and compiles a pre-sentencing report that the judge uses to determine what sentence to issue.
The pre-sentencing report is typically one major opportunity that defendants have to make a good impression on the judge, including by expressing contrition. Trump has suggested none of that since his conviction, including by attacking the verdict the very next day.