Former President Trump faces probation or worse if he's convicted in his New York criminal trial
Trey Gowdy breaks down potential Trump trial outcomes: Possibility of an 'active sentence'
Fox News host Trey Gowdy joins 'Fox & Friends' ahead of jury deliberations in Trump's New York trial to explain what would happen if the former president is convicted.
A Manhattan jury began deliberations Wednesday in former President Trump's New York criminal trial.
A guilty verdict in the historic case could have far-reaching consequences for the 2024 presidential election and upend criminal case law in New York, while a not guilty verdict would give Trump ammunition in a potential lawsuit for malicious prosecution, legal experts told Fox News Digital.
"It seems this is an all-or-nothing case, assuming arguendo there is a verdict and not a hung jury," said Trey Gowdy, "Sunday Night in America" host and a former federal prosecutor.
Manhattan District Attorney Alvin Bragg indicted Trump on 34 felony counts of falsifying business records in the first degree. Trump has pleaded not guilty to all counts.
In this courtroom sketch, former President Trump's children — Tiffany Trump, Donald Trump Jr. and Eric Trump with his wife Lara — sit next to Trump in a front row as defense lawyer Todd Blanche presents closing arguments during Trump's criminal trial on charges he falsified business records to conceal money paid to silence porn star Stormy Daniels in 2016 in Manhattan state court in New York City May 28, 2024. (REUTERS/Jane Rosenberg )
Gowdy, who has been in the New York City courtroom where Trump's case will be decided, said it was unlikely for the jury to find Trump guilty on some charges but not others.
"I cannot foresee a verdict with some counts as guilty and others as not. Unless there is a lesser included misdemeanor charge, in which case there perhaps could be a series of convictions for felony and misdemeanor counts," he said.
Louis Gelormino, a Staten Island defense attorney, agreed that the jury would render the same verdict on all counts "because all the felonies are pretty much the same."
"They're just different instances of the same felony," he told Fox News Digital.
NY V. TRUMP: JUDGE MERCHAN TO PRESENT JURY WITH INSTRUCTIONS AHEAD OF DELIBERATIONS
Former President Trump, flanked by attorneys Todd Blanche and Emil Bove, arrives for his criminal trial at Manhattan Criminal Court in New York, N.Y., Wednesday, May 29, 2024. (Jabin Botsford/Pool via REUTERS)
The charges against Trump in New York are related to alleged payments made ahead of the 2016 presidential election to silence adult film star Stormy Daniels about an alleged 2006 extramarital sexual encounter with Trump.
Prosecutors must convince the jury that not only did Trump falsify the business records related to alleged hush money payments, but that he did so in furtherance of another crime, conspiracy to promote or prevent an election. Bragg's allegation that Trump falsified records to cover up an additional crime elevated to a felony what otherwise would have been misdemeanor charges.
Gelormino said that in 45 years of practicing criminal law in New York, he and his law partner have never seen a case like this.
"This is the most absurd, obscene case we've ever seen anybody try to get convicted of. And for this to be a case against the former president of the United States puts it way over the top," he said. "Any citizen, anybody, should never be charged with these kind of crimes."
Manhattan District Attorney Alvin Bragg speaks during a news conference March 7, 2024, in Manhattan, N.Y. (Barry Williams/New York Daily News/Tribune News Service via Getty Images)
If Trump is convicted, he would still be able to run for president. But what that looks like will vary greatly depending on his sentence. An appeal could take months or even years to resolve. And an appellate court would decide whether to stay any sentence or conditions pending an appeal.
Prosecutors will have the option of requesting that presiding Judge Juan Merchan increase Trump's bail to guarantee his return for the sentencing hearing. This could also include a request for remand, which would place Trump in jail until his sentencing hearing. But legal experts say it is unlikely for a 77-year-old man who has never been convicted of a crime to be sent to jail.
Gelormino explained that before sentencing, the former president would have to meet with a probation officer for an interview to create a pre-sentencing report for the judge. The report, which can take six to eight weeks to complete, would include a short biography of Trump and a recommended sentence. It would be sent to all parties, and the defense would have an opportunity to suggest its own sentencing terms. Merchan would not be bound by the sentencing report.
The Rikers Island jail complex stands with the Manhattan skyline in the background June 20, 2014, in New York. (AP Photo/Seth Wenig, File)
Probation offices are located throughout New York City, but Gelormino guessed that authorities would make special arrangements for Trump so that a former president is not waiting for hours in a lobby with other convicts. Trump, like any other convict, would have to abide by certain rules as he awaits sentencing, including that he must admit guilt to the probation officer.
"When my clients have to meet with a probation officer, what the judges will tell you is you have to do three things. You have to stay out of trouble. You have to not get rearrested. And you have to tell the truth to the probation officer," Gelormino said. "Meaning, they ask you about the incident, and every one of my clients that goes in there, I always tell them, 'Just say to the probation officer you agree to what's on the record because you have to admit guilt.'"
If a convict found guilty by a jury of his peers does not admit guilt to the probation officer, Gelormino said, the judge will take that into account as an "aggravating factor" in sentencing.
NY V. TRUMP: PROSECUTION SAYS THEY HAVE PRESENTED 'POWERFUL EVIDENCE' AGAINST FORMER PRESIDENT
Former President Trump returns from a lunch break for his hush money trial at Manhattan Criminal Court May 28, 2024, in New York City. (Julia Nikhinson-Pool/Getty Images)
If Trump is sentenced to prison, New York City Mayor Eric Adams has said the city Department of Corrections and the Rikers Island facility in New York is "ready" to receive him. Asked if Trump would be housed by himself or with the general population, a Department of Corrections spokesman said, "The Department would find appropriate housing for him if he winds up in our custody." The department did not respond to additional questions.
Trump is entitled to Secret Service protection even if he is sent to prison. It is unclear how the Secret Service would coordinate with the court and correction officers to protect Trump if he is incarcerated.
"I don't think anybody knows what that would look like, God forbid that happens," said Gelormino.
Another option is for Trump to be placed in home confinement at Mar-a-Lago, his Florida residence. New York and Florida officials would have to coordinate, but this would severely restrict Trump's ability to campaign for the White House, said David Gelman, a criminal defense lawyer and former prosecutor based in New Jersey.
"A defendant basically cannot leave their residence unless they have to meet with doctors or an attorney. Also, traveling would be off limits as well, which would be a tremendous form of election interference due to the fact President Trump needs to campaign in different states in the country leading up to the election," Gelman told Fox News Digital.
The third option is probation. In this case, the probation officer assigned to Trump would exert great power over the 2024 Republican nominee. Trump would have to request permission to travel out of state, for example, which would greatly hinder his ability to campaign. He could also be subject to searches, surprise visits and be forced to attend meetings at any time.
COULD VERDICT IN TRUMP CRIMINAL TRIAL UPEND THE PRESIDENTIAL ELECTION?
Gelormino said there is "absolutely" a risk that a politically-motivated probation officer could abuse his or her power over Trump to keep him from campaigning.
"Probation officers tend, at least in New York City, … to be Democrats because it's a position that's politically motivated at the best of times," he said.
Trump has already referred to his New York case as a "witch hunt" led by Democrats and Judge Merchan as a "conflicted" judge in comments to reporters during his trial. Claiming unfair treatment by a probation officer with bad motivations would not be out of character for the GOP nominee.
If Trump wins the election despite his conviction, he will not be able to pardon himself, since this is a state case. How a sitting president of the United States could abide by the terms of his sentence after conviction for state crimes is unprecedented and unknown legal territory.
The other possibilities are that the jury is unable to reach a verdict and the case ends in a mistrial. Gelormino said, in New York, prosecutors typically will move to retry a case within two or three months, unless they can reach an agreement with the defense for a resolution that avoids trial. That outcome seems unlikely given Bragg's zealous prosecution and Trump's defiant proclamations of innocence.
Former President Trump, center, during a campaign event at Crotona Park in the Bronx, N.Y., Thursday, May 23, 2024. (Bing Guan/Bloomberg via Getty Images)
If Trump is found not guilty, New York City Councilman Joe Borelli, a Republican, said the president would be wise to move on. Borelli helped the Trump campaign acquire the necessary permits to hold a rally in the Bronx last week that attracted 10,000 people, according to law enforcement.
"I think he should just forget about it, move on and let his surrogates talk about the criminal prosecutions while he's doing what we saw him do here in New York, which is actually attracting and expanding his base," said Borelli.
However, Gelormino said Trump would have an excellent case to "turn around and sue everybody involved" in the prosecution if he wanted to take the litigious route.
"I think he's got a damn good case for malicious prosecution from DA Bragg's office. And I also think he would bring what's called an Article 78 proceeding against the judge for malfeasance in his job," Gelormino said. "I don't know if that would have as much legs as the malicious prosecution case against the DA. But I'd imagine that, knowing Trump, and knowing how tenacious he is, that he intends to bring something if he is acquitted."
Fox News' Brooke Singman contributed to this report.
Chris Pandolfo is a writer for Fox News Digital. Send tips to
