Trump’s punishment for his crimes? None | Moira Donegan

What kind of a sentence, exactly, is an “unconditional discharge”? When Judge Juan Merchan, of New York, issued the sentence on Friday, he declared that President-elect Donald Trump, convicted in his courtroom of 34 felonies, will face no jail time, no probation, and no fine for falsifying business records in order to conceal an affair he had with the adult film actress Stormy Daniels in the days leading up to the 2016 election. His punishment, that is, is that there will be no punishment at all.

Trump was never likely to get jail time, which would have been unusual for any defendant faced with these charges, and over the past days Merchan had signaled that he would not impose probation, either. And maybe that’s just as well – any punishment or sanction at all that he had imposed on Trump would have been likely to be appealed and suspended, at least for the duration of Trump’s time in office. There was, that is, no formal mechanism really available by which the criminal justice system could punish Trump for the crimes he was convicted of. “This court has determined that the only lawful sentence that permits entry of judgement of conviction without encroachment on the highest office of the land is a sentence of unconditional discharge,” Merchan said, explaining his reasoning: there is no way to punish a man who is about to be the president. In a sense, the sentencing merely confirms what many of us already know: that by virtue of who he is, Trump is beyond the reach of consequence.

Even though there was no punishment, it was not a foregone conclusion that there would be any sentencing at all. Merchan had delayed the sentencing several times, so as not to appear biased ahead of the 2024 election; Trump himself had petitioned to have his conviction vacated, arguing – following the supreme court – that as a former president, he is largely immune from criminal prosecution. Merchan denied that petition in his own New York state court, but Trump made a last ditch effort to ask the supreme court to prevent him from being sentenced last week, a request the court denied not long after news leaked that Trump had a highly irregular and inappropriate personal phone call with Justice Samuel Alito just hours before his petition to the court was filed. At many points, over the course of the months since his May 2024 conviction, it looked as if he never would be sentenced; that he was sentenced to nothing, then, is itself a small victory.

Perhaps that victory is a sign of just how low our standards for institutional response to Trump have fallen. There have been so many attempts to check or punish Trump’s abuses of power through formal state mechanisms, the ones that we were told, in our grade school civics classes, existed precisely to stop a man like Trump from using the presidency the way he uses it. Impeachment was once a nearly unheard-of step, used by Congress to discipline only the most egregious presidential conduct. Trump was impeached twice, and neither time was he convicted. A congressional committee with subpoena power conducted a high-profile, monthslong investigation into his attempts to overturn the 2020 election; they won decent ratings and perhaps some moral victories, but no political ones.

Biden’s attorney general, Merrick Garland, a timid man ill-equipped for his historical moment, was finally forced, against his apparent will, to appoint a special counsel to investigate Trump’s crimes, and that special counsel ultimately brought charges in two cases: one relating to Trump’s attempts to overturn the election, and another related to his bizarre and dangerous decision to steal classified documents from the White House after he was finally forced from office, and stack them up like old towels in the bathrooms at Mar-a-Lago. Those cases came to nothing after the supreme court, packed with Trump loyalists and appointees, intervened to stop them. A criminal prosecution in Atlanta for Trump’s attempts to overturn the election results was neutered when Trump allies in Georgia created a fake scandal around the case’s prosecutor and had her disqualified. Now, the New York case, over his fraudulent business records, has ended with no punishment.

Tremendous effort went into these attempts to hold Trump accountable through the institutions of government. But those institutions turned out to be ineffectual, weak, cowardly, or captured. They could not – or would not – stop him.

These institutions will be weakened or captured further in a second Trump administration. There will be more Trump judges appointed to the federal bench; more supreme court rulings expanding his power and limiting his liabilities; more opportunities for the law and the courts to be used to punish Trump’s enemies and reward his friends. What the law means, we have found, tends to be different depending on who it is being applied to; it is different, and less severe, when it is applied to Donald Trump.

With Trump’s non-sentencing, then, we might be able to finally abandon the futile hope that the institutions of liberal democracy can check him, that the lies and corruptions that our system of government has enabled Trump to pursue might be curtailed by some other, nobler, hidden function of that same constitutional system. There must be other modes of resistance now, other ways to keep alive the dream of a different America – more democratic, more equal, more pluralistic and more free. There are those, still, who can help us build that country, those who can help us keep the principle of it glowing, like an ember in the dark. Those people, however, will likely not be lawyers.