'Wins or loses': Legal experts think judge could still jail Trump if he becomes president

Even if he wins the November 5 election, Donald Trump must appear before Judge Juan Merchan for sentencing in the New York fraud trial on November 26 — and he faces two very different scenarios.

Trump was convicted of 34 counts of falsifying business records in the hush money case brought by Manhattan District Attorney Alvin Bragg earlier this year. Prosecutors said Trump concealed records to cover up a hush payment scheme to adult film star Stormy Daniels to hide a sexual relationship from voters, improperly influencing the 2016 presidential election.

In the latest "Jack" podcast, a listener asked how the sentencing could unfold, given the recent Supreme Court's ruling that Trump has immunity for officials acts carried out while president, and in light of whatever the election result is.

Read Also: Behind the legal tactics Trump is using to dodge justice for January 6

Podcast hosts legal analyst Allison Gill and former FBI deputy director Andrew McCabe think Merchan will issue a sentence that is the same whatever the election result. However, the way the sentencing unfolds might be different.

"It seems like a simple question, but when you unpack it in your head, it gets a little complicated," prefaced McCabe. "One is the legal side of how do the election results affect this sentencing process. The second one is the sentencing side, like what could he get? Could he be detained, that sort of thing."

If Trump wins the election, McCabe thinks sentencing will be fraught with appeals.

"That could take forever," McCabe continued.

Also if elected, both analysts believe Trump will escape immediate detention — but it might not be forever.

"I feel like Merchan will have a very hard time rationalizing taking the person who has just been elected president of the United States ... and confining him," said McCabe.

McCabe said Merchan could sentence Trump but suspend the sentence until after he leaves office.

"That's what I think will happen," said Gill. "And I think Merchan's sentencing is the same whether he wins or loses. ... I think Merchan's decision is Merchan's decision, and it won't change based on the election results."

"Totally agree with you," said McCabe, further noting he doubts Merchan will buy into the "immunity" ruling.

Listen to the podcast here.