Judge Merchan Has One Option That Could Hurt Donald Trump: Attorney

Judge Juan Merchan has one sentencing option that could hurt President-elect Donald Trump, legal analyst Barbara McQuade said on Friday.

Appearing on podcast CAFE Insider hosted by Elie Honig, McQuade, a former U.S. attorney for the Eastern District of Michigan, explained that, while prison-time is now impossible, the judge could still consider imposing a fine on Trump while he remains a private citizen.

Merchan is overseeing Trump’s criminal hush money case in New York, where in May he was convicted on 34 counts of falsifying business records to conceal hush money payments to adult film actress Stormy Daniels (real name Stephanie Clifford).

The sentencing date is set for November 26; Judge Merchan decided to delay it from an original date in September until after the election to avoid giving any impression that the sentencing would give an advantage or disadvantage to any candidate.

Following Trump’s victory, the Department of Justice (DOJ) is reportedly “winding down” its federal criminal cases against Trump to uphold its policy of not prosecuting sitting presidents.

McQuade said on the podcast that Trump could not realistically face jail time after winning the election.

“If a president is too distracted to defend himself in a criminal case and can’t be charged while he is sitting, then I certainly think he can’t also be jailed while he is sitting,” McQuade said on the podcast. “So the only options are a fine, for now, or to sentence him to, you know, time served, no custodial sentence, or to defer the sentencing until 2029.”

“If it’s a fine, sure, bring him in, impose a fine. I don’t know what the maximum possible fine is, but there were 34 felonies, so impose a fine.

According to Trump’s August financial disclosures, he already owes more than $100 million in fines from other cases in New York, relating to business fraud and defaming writer E. Jean Carroll.

Merchan is also yet to rule on how the case is impacted by the Supreme Court‘s July ruling that found presidents have broad immunity from prosecution over their official acts. While most of the criminal activity in the case occurred before Trump was elected in 2016, some of the evidence was from after he became president.

Writing in his blog Original Jurisdiction, lawyer and legal analyst David Lat said he did not think the sentencing would proceed at all.

“It’s unlikely that Justice Juan Merchan will proceed with sentencing a President-elect,” Lat wrote. “Even a noncustodial sentence like probation would present issues—e.g., can a sitting U.S. president be required to check in with a state probation officer? But whether Justice Merchan would postpone sentencing until after Trump leaves office or get rid of the case entirely—perhaps by granting Trump’s pending motion to dismiss based on the Supreme Court’s immunity ruling—is unclear.”