"Trump will be under house arrest in the White House": Former DOJ prosecutor on what could come next

Donald Trump is now a convicted felon. Beyond the conviction in his New York hush-money trial last week, he still faces three other criminal trials. The punishments in those cases for the Jan. 6 coup plot and stealing classified documents are far more serious. Trump potentially faces hundreds of years in prison if convicted for these crimes.

Donald Trump’s historic felony conviction is part of a much larger unprecedented moment in American history where the country is facing an assault on its democracy from within by the Trumpists and other neofascists (which itself is part of a larger global plot against pluralistic democracy).

Those Americans who were hoping that Donald Trump’s historic felony conviction would somehow stop his attacks on democracy or force him to reconsider his antisocial behavior or to perhaps even withdraw from public life must be very disappointed. If anything, Donald Trump and his MAGA Republicans and other authoritarian cultists and followers appear to be energized by the hush-money conviction and are escalating their attacks on the country’s multiracial democracy and the rule of law and the governing institutions upon which they depend.

For example, Trump supplicant Speaker of the House Mike Johnson is now threatening to defund the Department of Justice in retaliation for its attempts to hold Trump responsible for his many obvious crimes. Other MAGAfied Republicans are threatening to convene Congressional investigations and hearings into (and by implication punish) Manhattan District Attorney Bragg and his conduct in Trump’s hush-money election interference trial. Donald Trump is continuing to incite violence by his political cultists and other followers and allies against Judge Merchan, President Biden, and his other “enemies” who were involved in a “witch hunt” against him. Of course, no such conspiracy exists.

During a Tuesday night interview on Newsmax, Trump again threatened to retaliate against President Biden and Hillary Clinton by putting them in prison. Trump has also made both direct and implied threats that President Biden and Hillary Clinton and other leading Democrats should be executed for treason. These attacks, lies, and projections by Donald Trump are the standard tactics of autocrats, dictators, and other enemies of democracy.

Donald Trump is continuing to show his disdain for Judge Merchan (who presided over the hush-money election interference trial) and the courts – and basically daring Judge Merchan to sentence him to prison – by sending out fundraising emails that mock his being found guilty, and newfound status as a felon.

On Tuesday, Trump sent out one such email which reads:

Trump and his propagandists know their target audience: Trump has reportedly raised more than 50 million dollars from his MAGA people in the twenty-four period following his felony conviction last Thursday.

In short, Donald Trump’s first felony conviction is not the end of something or a type of early climax that will inevitably lead to the end of the Age of Trump and the country’s democracy crisis. Instead, Trump’s felony conviction in the hush-money election interference case appears to be another chapter in an interminable and exhausting story where the future and outcome are still very much uncertain.

To make better sense of Trump’s conviction in the hush-money trial, what happens next with his appeals and sentencing, and the larger implications for the country’s democracy crisis and the 2024 election, I recently spoke with Kenneth McCallion. He is a former Justice Department prosecutor who also worked for the New York attorney general's office as a prosecutor on Trump-related racketeering cases. McCallion's books include the companion pieces "Profiles in Courage in the Trump Era" and "Profiles in Cowardice in the Trump Era," as well as "Treason & Betrayal: The Rise and Fall of Individual-1."

As a former Assistant U.S. Attorney with the Department of Justice you have gone up against Donald Trump in New York. Given his historic felony conviction in the hush-money election interference case, how are you feeling?

The motions before the judge are quickly going to be disposed of. And Trump really doesn't have any credible, persuasive arguments on appeal, because Judge Merchan was so straightforward, rigorous, and meticulous in his oversight of the trial that the jury verdict is largely bullet-proof. Trump is going to appeal, obviously, but I know the judges on the Appellate Division First Department l in Manhattan fairly well. Those judges are no-nonsense, intelligent, and non-political. They will quickly see that there are just no trial errors that would require reversal and a setting aside of the jury verdict. The evidence was overwhelming. A motion to set aside the jury verdict is going nowhere because the DAs office put together such a meticulously crafted prosecution.

Trump and his lawyers did not do themselves any favors. They went very light on the cross-examination of David Pecker, for example, and then just loaded up on Michael Cohen. But the jury already knew that Cohen’s testimony had to be corroborated, and it was. Trump's team did not have an answer or a different narrative to offer the jury. The human brain is wired to require an alternative set of facts to be presented to them if they are being asked to reject the prosecution’s story. The jurors needed that alternative narrative from the defense if they were going to be convinced that Trump was not guilty as charged. But Team Trump was not able to provide the jury with any alternative theory, and thus defaulted.

Successful defendants generally do not rely upon the fact that the government has the burden to prove their charges beyond a reasonable doubt in our adversarial system. Trump's attorneys made the mistake of just relying on pointing out minor inconsistencies and small cracks in the prosecution’s case, which was not enough to avoid a conviction.

Was Trump's conviction anti-climactic?

Looking back on my years as a prosecutor, there is always a degree of nervous anticipation before a jury returns with its verdict. But if I were the prosecutor in Trump's hush-money case I would have felt that it really could not have gone much better. It would have taken something quite spectacular not to have a unanimous guilty verdict. I actually did not think that the jury would find Trump guilty on all 34 counts. A jury usually likes to cut a defendant some slack when there are so many felony counts to consider. But I think that Trump painted himself into a corner here. Trump's demeanor, the comments that he was making during the trial, and his attacks on the judge and his daughter did not win him any sympathy in the courtroom. Nor did the contemptuous attitude by Trump’s final witness- which upset Judge Merchan so much and led him to clear the courtroom - did not help Trump. New York juries are pretty sophisticated. And these jurors were not all liberal Democrats, not by a long shot. The jury carefully considered the evidence, and by all accounts they were very attentive during the trial.

Why did Donald Trump lose?

Trump did not let his attorneys do their job. They were reasonably good attorneys. Trump was micromanaging the defense. For example, they were not very rigorous in their cross-examination of David Pecker — Trump directed them to do that. Trump wanted his attorney to go hard on Michael Cohen. But that was not the best choice given there was lots of corroborating evidence for his claims. It was clear that a deal was made between Trump and his supporters in the news media, The National Enquirer, to catch and kill stories that could potentially hurt him. Stormy Daniels also held up quite well as well. Trump's attorney rigorously cross examined her but really could not undermine her on any of the essential facts. In the end, the prosecutors put together a very effective presentation of the facts and evidence.

There is that old expression among lawyers that some clients just find a way to talk themselves into prison. Does that apply to Donald Trump?

An obvious example would be Trump announcing to the world that he was going to testify in his own defense. Then when push came to shove, Trump sat there silently in the courtroom and did not testify. He did not defend himself. Trump is like a common schoolyard bully. When they are confronted, they wilt. Trump put up a strong tough guy facade for a while, but at the end of the trial he looked like a deflated balloon, more accurately a deflated buffoon.  I do not believe that Donald Trump is going to seriously recover from the blow of being found guilty and now being a convicted felon. Trump cannot accept it psychologically. He lives in an alternative universe that is very different from the one the rest of us live in.

What happens now after Trump's conviction? Specifically, what of the pre-sentencing interview where Trump should show some remorse and contrition to avoid prison?

If Trump wants to avoid a jail term — this is his first offense — he will have to do something that he may be incapable of, which is showing remorse and seeking the mercy of the court. From a criminal sentencing standpoint, that would be key for Trump to avoid going to jail. But he is in the middle of a presidential campaign, so politically and psychologically, Donald Trump cannot show the required regret and humility that would keep him out of jail. Trump and the MAGA-Republican Party and their media outlets such as Truth Social are going to double and triple down on the witch hunt narrative that someone the judge and judicial system are corrupt. The probation department will also examine Trump's background, which is pretty much an open book. The only thing Trump has in his favor is that he does not have prior offenses. However, the lack of remorse or contrition is going to be a decisive factor in the probation report and at his sentencing. Trump is going to be sentenced a few days before the Republican National Convention starts. I believe that it is quite likely that Donald Trump is going to be sentenced to a prison term. Trump will have an appeal and that process will go on for a few months. But again, Trump's appeal is likely going to fail.

Donald Trump is continuing to verbally attack and incite violence against Judge Merchan, the prosecutors, district attorney Bragg and others who were involved in his trial. It almost seems like Trump is daring Judge Merchan to put him in prison.

Donald Trump's only hope is to be elected President of the United States again. That is really the only way for him to escape prison. Trump cannot commute his own state sentence, but he is going to try his best to convince the public that he is a political martyr who is being unfairly persecuted and being nailed to the cross for his political beliefs. Trump's MAGA base will rally around him. But ultimately, Donald Trump is going to have to serve some prison time either before or after his presidency. Perhaps, Trump will be under house arrest in the White House, something heretofore unimaginable.

Help me sort through the tension that exists in my mind about how to best punish Donald Trump for his many crimes. On one hand, Donald Trump is an unrepentant criminal and has basically been one for a very long time. He attempted a coup and has caused so much suffering and death in this country. Trump should be put on trial and sentenced to Leavenworth or some other high-security federal prison or military prison on those grounds alone.

On the other hand, there is all this chatter about Donald Trump being given a "creative punishment" by Judge Merchan for his impudent behavior against the court and in the hush-money election interference case. For example, some people are suggesting that Trump should be made to pick up garbage on the side of the road or clean up subway cars or perhaps work at a rest home or state hospital emptying bedpans and mopping floors. I don't want to see a former president doing those things. I'm worried about the damage that would do to the institution that is the Presidency of the United States.

I have represented many defendants where community service is a good option instead of jail time. Most of us do not want to see an ex-president pilloried or put in the stockade, literally or metaphorically. But on the other hand, there should be a significant penalty for committing 34 felony crimes. Jail time is one of them. I don't see any other creative alternative that Donald Trump would acquiesce to or abide by. Trump has no sense of responsibility to the community. Trump is also not voluntarily going to put on an orange jumpsuit and join a crew along the side of a highway cleaning up garbage. I agree with you that such a spectacle should not take place with Donald Trump. But Michael Cohen, for example, did spend some time in what we call one of the "elite prisons" of the New York State penal system. Conditions there are certainly not very harsh, but you are still incarcerated. You are not a free man. Donald Trump should experience that too. The punishment should fit the crime.

How will the lives of the jurors be impacted? I am very concerned about their general well-being and safety. Their lives are never going to be the same again.

There is apparently a campaign by Trump's supporters to find and humiliate the jurors. I sincerely hope that the Trump crazies do not find them. The jurors could require a certain amount of protection for life, something akin to the federal witness protection program. The jurors in the Trump hush-money case are courageous people. They knew that they would subject themselves to this potential and very real danger. This story is far from over. They will have police and other law enforcement protection, but that does not necessarily stop a fanatic from causing them harm.  Look what happened to Nancy Pelosi’s husband.

Donald Trump has shown that he is vindictive enough to reveal the jurors’ identities. In a serious organized crime case, very often the names of the jurors would not be disclosed. The jurors are just given numbers. I am also surprised that the jurors were not sequestered in a hotel room and protected overnight. Apparently, the jurors were going home during the trial. I'm surprised that the trial saw its way through to a positive conclusion. I was holding my breath for three weeks that one disaster or another would occur with regard to the jury. Trump's trial was a de facto organized crime case and should have been treated as such. I'm so glad that no harm came to the jurors during the trial.

Donald Trump and the Republicans, including Speaker of the House Mike Johnson, are going to pressure the United States Supreme Court to somehow throw out the hush-money election interference case guilty verdict. Is that viable?

Even given the current right-wing composition of the Supreme Court, I do think that's a bridge too far for even for them to put their fingers on the scales so boldly in Trump's favor. The legitimacy of the Court is imperiled right now in so many ways, most recently by Justice Alito flying that upside-down American flag outside his home. I just don't see the Supreme Court acting so recklessly.

If the Age of Trump was a fictional story or a sporting event, where are we?

The outcome is not yet decided. Applying a baseball analogy, we are in the fourth inning. The rule of law is up by one run to zero at this point. But it is going to be a long time until November, and the outcome on Election Day is not preordained. In my opinion, what is going to matter with Trump's hush-money trial, and hopefully the other ones, is the impact they have on voters who are independent and undecided. In the end, those Americans are going to decide the fate of American democracy. There's really no middle ground at this point. The United States is going to continue to be a real democracy, or it will become a fake democracy with some type of autocracy or dictatorship under Donald Trump and his MAGA Republicans.

If Donald Trump was somehow found "not guilty" in the hush-money election interference trial, what do you think that would have done to us as a nation? What would we be talking about right now?

That was the doomsday scenario. If Donald Trump was found "not guilty" it would have emboldened him in his lawbreaking and attacks on American democracy. Trump has dodged the wheels of justice almost his entire life. For him to escape again would have just been devastating. Horribly so.