Retired Judge Andrew Napolitano said Sunday he disagrees with opinions that former President Donald Trump will be sentenced to any time in jail, suspended or not, because his case doesn't meet the criteria used to incarcerate convicted felons.
"I have great respect for my colleague, professor [Alan] Dershowitz, but I disagree on this," Napolitano said on Newsmax's "Sunday Report," after Napolitano told Newsmax that he thinks Trump will get a suspended sentence. "Can Judge [Juan] Merchan legally do that? Yes. Could he lock him up at the moment of sentencing and banish him to a jail immediately? Yes, but I don't think he'll do that."
Judges have to fill out a checklist of aggravating factors and mitigating factors, said Napolitano.
"The first four questions the judge has to answer are these: Does the defendant have a prior criminal record?" he said. "Answer, no. Is the defendant a menace to society? The answer is no; the government would say yes, but he's not a menace to society. Was this a violent crime? Answer no. How badly did he harm the victims? What victims? There was no victim in this case."
As the answers are all no, that will tell the judge that a noncustodial sentence, meaning a fine and probation, is best, said Napolitano.
"Probation will drive [Trump] crazy because he'll have to report to his probation officer once a week," he said. "Eventually they'll make it once a month. When and if he's elected president, all of this would stop for the four years he's in the White House and then it would pick up again after, if the case or the punishment is not reversed on appeal."
But, Napolitano stressed, "This is not a case, take this to the bank, this is not a case for incarceration."
Meanwhile, there is a "fatal flaw" in Trump's guilty verdict and most likely, the former president's lawyers will exploit the flaw and appeal the case, said Napolitano.
"By allowing the jury to find him guilty of committing 34 misdemeanors in order to mask a felony and not requiring the jurors to identify that felony … the system violated the fundamental rights of the defendant, Donald Trump. He's entitled to know exactly what he's accused of and exactly what he's convicted of."
Napolitano added that he expects at least one of the jurors to speak out and talk about how the jury was not unanimous on deciding what underlying crimes were in play with the decision to find Trump guilty of all 34 counts against him.
"The government must prove the defendant guilty and for him to be guilty, it must prove every element of every crime unanimously beyond a reasonable doubt," said Napolitano.
He said that Trump's appeals will also take several years to conclude.
"They have three years of appeals on line ahead of Donald Trump," he said. "I don't think they'll leapfrog him to the front of that line."
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Sandy Fitzgerald ✉
Sandy Fitzgerald has more than three decades in journalism and serves as a general assignment writer for Newsmax covering news, media, and politics.
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