Reuters has not reviewed each of those cases, some of which involve corporate defendants who by definition cannot be incarcerated.

Records maintained by the Manhattan criminal court show that at least four defendants who pleaded guilty to that charge during that period were sentenced to a year or less behind bars. Three of those defendants, unlike Trump, were also charged with crimes such as fraud and grand larceny.

The fourth individual, a construction executive who pleaded guilty in December 2015 to one count of falsifying business records as part of a commercial bribery scheme, was sentenced to one year of intermittent imprisonment, court records show. That meant spending Monday evenings through to Wednesday mornings at New York City’s Rikers Island jail, but he was free otherwise.

“It’s probably not that often that someone’s getting significant jail time on this particular charge,” said Tanisha Palvia, a former prosecutor in the Manhattan District Attorney’s Office. “But because there’s so much discretion involved in this, it’s not unheard of that a person with no criminal history, a first-time offender, can get prison time,” said Palvia, now a defence lawyer with law firm Moore & Van Allen.

‘Sentencing Is An Art’

Merchan has acknowledged the possibility of incarcerating Trump.

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“Everyone knows that if Mr Trump is found guilty in this case he faces a potential jail sentence,” the judge said during jury selection on April 16, in explaining why he was dismissing a prospective juror who had written “lock him up” in a 2017 social media post about Trump. Attempting to incarcerate a former president who may win the presidency again in November and is entitled to round-the-clock Secret Service protection would pose unprecedented challenges, though it is a conundrum other countries have faced.

In warning Trump on May 6 that he would be jailed for any further violations of a gag order restricting his public comments about jurors and witnesses, Merchan said he worried about how any such decision would affect court officers, corrections officials and Secret Service agents.

“Incarceration is truly a last resort for me,” Merchan said. “I worry about them and about what would go into executing such a sanction.” At the time, Trump had been fined $US1000 for each of 10 violations of the gag order. To be sure, any sentence of incarceration would likely be longer and have more significance than a stint behind bars for gag order violations.

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Another factor that Merchan may consider is Trump’s decision to take his case to trial. While any criminal defendant has the right to do so, judges often look favourably on people who admit culpability and express remorse.

“It’s hard to predict, but I would agree that it’s not an impossibility,” Rebecca Roiphe, a professor at New York Law School and a former prosecutor in the Manhattan District Attorney’s Office, said of a possible Trump incarceration. “Sentencing is an art, not a science.”

Reuters