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Former President Trump is now a felon. Will he get prison time?

STEVE INSKEEP, HOST:

Duncan Levin has been listening in with us. He's a criminal defense attorney and former New York state and federal prosecutor. He's been following this case. Mr. Levin, good morning.

DUNCAN LEVIN: Good morning, Steve.

INSKEEP: OK. Let's just go through the evidence here briefly. Trump made payoffs to an adult film star. There doesn't seem to be very much doubt about the basic facts. But the legal question is, did he falsify business records, and did he do that as part of a scheme to influence the election? The jury agreed, but do you?

LEVIN: I thought the prosecution did a really good job of showing how the core testimony of Michael Cohen was corroborated by evidence that supported that. The conspiracy was clear from the testimony of people like David Pecker of the National Enquirer that Donald Trump conspired with the National Enquirer and Michael Cohen to send these hush money payments in violation of federal election law and that he took steps to cause Michael Cohen and Allen Weisselberg at the Trump Organization to falsify business records to cover it up. So the prosecution did a very good job of painting this very compelling narrative.

And at the end of the day, the defense tried to sow some confusion about that and poke holes at it by attacking Michael Cohen's credibility. But it just failed because Michael Cohen's testimony was so highly corroborated by texts and emails and other evidence.

INSKEEP: Oh, this is very interesting. If it had been Cohen's word alone, Trump might have gotten off it, sounds like you think.

LEVIN: That was the message that the defense was trying to send, that you can't convict Mr. Trump based on Mr. Cohen's testimony. But the jurors obviously rejected that. And the prosecution said you should reject it because all of these other pieces of evidence so highly corroborate what he's saying. They - the - all the pieces of evidence work together like a jigsaw puzzle. And so, the prosecution argued, you don't need Michael Cohen's testimony. There's enough to convict him even without it.

INSKEEP: So let's talk through the grounds for an appeal here. You feel this is a strong case, but you are also professionally a defense lawyer. So if you were Trump's defense lawyer, I imagine he would be telling you to appeal, and you'd be looking for grounds. What are the strongest possible grounds for appeal?

LEVIN: It's a novel case, obviously. The jury was allowed to look at different types of, quote-unquote, "means" by which Mr. Trump promoted his election. And they were allowed to come up nonunanimously with different types of means. I'm sure you'll see some appeal based on that. And the defense is probably going to argue ineffective assistance of counsel for - and this is Mr. Trump, by throwing his lawyers under the bus - but for allowing some of the testimony by Stormy Daniels to come in that they'll say was prejudicial. And I think you're going to probably just see an appeal to the public opinion that this trial was rigged, that it was unfair and that he couldn't get a group of New Yorkers to take a look at this case without their prejudices.

INSKEEP: OK. So let's go through some questions that I think people would naturally have as they hear about this verdict - just ordinary-person questions, questions I've heard in the last 24 hours. First, does Trump go to jail?

LEVIN: It's on the table. It's unilaterally up to the judge. The crimes are punishable by up to four years. There are other things on the menu for the judge. He can sentence Mr. Trump to probation or to what's called a conditional discharge, and he can sentence Mr. Trump to home confinement. So it's on the table. And this is a defendant who has been found in criminal contempt of court now 10 different times for violating the gag order. I'm sure the judge will take that into consideration. I expect the prosecution to ask for a sentence of incarceration. I'm sure the defense will argue against it, but it's really just down to the judge and his unilateral decision about whether to send him to jail.

INSKEEP: What about before this is final-final? We've got five or six weeks until the sentencing. We are assuming there will be an appeal. Would the former president stay out of jail for sure during all of that time?

LEVIN: I think the judge is likely to find that there really are no legitimate grounds for appeal here. There's nothing unfair about the process. And I think you're likely to not see the judge put over a sentencing for an appeal, and it's probably going to go into effect right away.

INSKEEP: Wait, you're saying that that Trump could be jailed prior to the election. That's plausible to you.

LEVIN: I think it's not only plausible, but if there is an incarceratory sentence, I think you're going to see that happen right away.

INSKEEP: And is that something that the former president could then appeal to a higher court?

LEVIN: You're going to definitely see an appeal of the sentence, no matter what this judge does. But I think that this is an appeal that's unlikely to carry any weight in the New York courts. You may see him bring some kind of federal appeal, and that'll go to the Supreme Court, possibly. But I don't think that there's anything that is likely to win at the end of the day.

INSKEEP: I want to clarify that it's a state trial. He would appeal to the state's highest court, the Court of Appeals. You're saying that he could plausibly come up with some federal cause to get this into federal court.

LEVIN: If he can argue that his federal constitutional rights were violated, you will absolutely see something go to the federal courts.

INSKEEP: Criminal defense attorney Duncan Levin, thanks for your insights. Really appreciate it.

LEVIN: Thanks so much. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Steve Inskeep
Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.

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