'Uncharted waters': Experts suggest Trump’s looming sentence could include prison time

On September 18 — just 48 days before the election — former President Donald Trump is due to appear in Manhattan, where he will be sentenced for 34 felony convictions. Some criminal justice experts believe the ex-president could very well end up behind bars.

Newsweek reported that University of California-Berkeley law professor John Yoo, who served in former President George W. Bush's Department of Justice, said Judge Juan Merchan may very well include a stretch of prison time when handing down his sentence. However, he noted that incarcerating the 2024 Republican presidential nominee could be seen as an overtly political move that could favor Trump in the appeals process.

"He could have exercised his discretion here to change the sentencing date. But instead, he actually moved it closer to the beginning of absentee voting in my home state of Pennsylvania," Yoo told Fox News.

READ MORE: JD Vance calls for Judge Merchan and his daughter to be subpoenaed so GOP can 'punish' them

After a jury found the former president guilty on all 34 class E felony counts in May, Merchan moved Trump's sentencing date from July to September after the Supreme Court ruled that Trump had absolute broad criminal immunity for official presidential acts. And earlier this month, prosecutors with Manhattan District Attorney Alvin Bragg's office deferred to Merchan to decide whether to delay sentencing Trump even further, pushing it out until after the November election.

Class E felonies don't require prison time in New York, but Merchan has the discretion to sentence Trump to as many as 20 years behind bars. Because Trump is a 78 year-old first-time offender, Syracuse University law professor Greg Germain said he didn't think Merchan would send the 45th president of the United States to a New York state prison.

"If Merchan sentenced him to jail in the middle of the election for this records violation, I think the courts would do whatever is necessary to prevent it. We'd be in uncharted waters," Germain said. "But I don't think Merchan will sentence him to jail. I think there were serious problems with the case and it should be reversed on appeal in due order without upsetting the election cycle."

Whether Trump ends up actually wearing a prison jumpsuit before or after the election could depend on how Merchan views Trump's level of respect for the criminal justice system, according to his former defendants. Earlier this year, several people who Merchan sentenced in the past described the jurist as tough but even-keeled, provided those who appeared before him respected the process.

READ MORE: Defendants in Merchan's courtroom say toughness of sentences depends on level of 'respect'

"It seemed to me that [Merchan] was like, if you at least seem apologetic for the crime you did, he would be more lenient," felony defendant Andrew Rossig told the Daily Beast. "I don’t ever remember saying to myself, ‘This judge is ridiculous and I‘m going to jail for the rest of my life.’ It was more like, ‘Treat him with respect and he’ll be fair."

But given that Trump repeatedly violated a gag order Merchan issued during the trial to prevent the ex-president from attacking jurors, witnesses, court staff or their families (including Merchan's daughter), he may opt for a tougher sentence. Yoo cautioned that a prison sentence could have political ramifications.

"Could you imagine what would happen if Judge Merchan sentenced Donald Trump to jail time, even though he's a first time nonviolent offender?" Yoo said. "What if Judge Merchan even went crazier and said, Donald Trump doesn't even get to stay out of jail while his case is on appeal? He has the power to actually order Donald Trump sent to jail immediately, although I expect he wouldn't."

"But this judge has used his discretion every time to try to force this trial in a political direction that will have an effect on the election," he added.

READ MORE: Donald Trump guilty on all counts in New York criminal trial

Click here to read Newsweek's report in full.