What would Donald Trump's jail conditions be like for the billionaire used to mansions and yachts if he's convicted in the hush money trial?

  • Michael Cohen is back on the stand for cross-examination Monday
  • Legal experts predict a conviction would bring probation for Trump
  • But Judge Juan Merchan could impose a jail sentence if jury convicts 

Donald Trump's legal team had reason to hope that Michael Cohen's performance on the witness stand could sow reasonable doubt with at least one member of the jury in the Stormy Daniels trial.

But Trump is still days away from the culmination of a trial that could send him to jail for up to four years on each of the 34 felony counts - if he is convicted for falsifying business records relating to the payoff of the porn star.

'Probably the worst outcome is that Trump is found guilty of multiple felony counts and thus he is forever more a convicted criminal and a felon,' said Eugene O'Donnell, who teaches law at John Jay College of Criminal Justice. 

Judge Juan Merchan says he has no desire to put a former president behind bars. 

'The last thing I want to do is to put you in jail,' Merchan told Trump this month even as he found him in contempt and slapped him with fines totalling $10,000 for violating a gag order restricting his comments on the case.

'You are the former president of the United States, and possibly the next president as well. There are many reasons why incarceration is truly a last resort for you.'

That is an issue that may be on the jury's mind as well as they weigh guilt or innocence, although Merchan will instruct them to focus on the facts of the case. 

Defense lawyers are nearly through cross-examining Michael Cohen in the Donald Trump Stormy Daniels hush money case. Experts say Trump is unlikely to get jail time even if convicted

Defense lawyers are nearly through cross-examining Michael Cohen in the Donald Trump Stormy Daniels hush money case. Experts say Trump is unlikely to get jail time even if convicted

What if the jury finds him guilty of felony falsification? 

The first key is the jury - not only whether it will convict, but whether it decides to convict Trump on all 34 counts, which relate to Trump Organization documents, check stubs, and documents that concealed the payments. (The reimbursements to Cohen went down as legal fees and documents listed him as being on legal retainer, which Trump maintains is accurate).

'As a practical matter, the most likely outcome would be a sentence of probation which would be no small thing in that he would be a run of the mill convict forced to submit to the humiliations attendant to probation which could include restrictions on his liberty and I think potentially drug and alcohol testing,' O'Donnell told DailyMail.com. 

That would all come even as Trump continues to enjoy Secret Service protection, as established by law and policy. 

'It’s not impossible to conjure up an incarcerative sentence if the trial Justice finds his conduct persistent, flagrant, and Trump wholly unrepentant,' he said, while calling it highly unlikely in New York County.

Judge Juan Merchan would get to decide Trump's sentence if the former president is convicted. First he would seek sentencing memos from both sides

Judge Juan Merchan would get to decide Trump's sentence if the former president is convicted. First he would seek sentencing memos from both sides

Michael Cohen testified that he committed a series of lies, but said many of them were on behalf of his former boss, Donald Trump

Michael Cohen testified that he committed a series of lies, but said many of them were on behalf of his former boss, Donald Trump

Hung jury option 

 Another possibility is that given the high stakes and conflicting testimony, the jury is simply unable to reach a verdict. That would result in a hung jury and a mistrial.

That would put the ball back in DA Alvin Bragg's court.  He has already taken heat – and arrows for Trump's team – for firing up an investigation that had been seemingly shelved when he took over.

Even if he decides to go ahead and proceed, a new trial would be pushed well after the November elections.

A misdemeanor compromise?

A conviction could in theory subject Trump to a sentence of between a year and four months and four years.

But he has a lot going in his favor. He has never been convicted of a crime. He has a non-violent record and the things he is charged with are all nonviolent offenses.

'For a Class E felony which is what this is, with someone who has no prior contact with the criminal justice system, it would be highly unlikely that they would do any jail time,' said Adam Shlahet, a former New York prosecutor and defense attorney who runs the trial advocacy center at Fordham Law School.

'I would assure a client that they don’t need to worry about jail. But this is different, right? It’s hard to know what this judge will do. I think jail is still unlikely. But this is a unique case. It’s on the table but I don’t think it’s realistically on the table,' he told DailyMail.com.

The judge can consider 'pretty much everything' during sentencing, and if he finds the defendant doesn't respect the rule of law, then he could say a sentence of probation 'is insufficient,' said Shlahet. 

Even probation is no cake walk, and requires regular reporting to authorities, and violations can bring incarceration. 

Prosecutors and defense lawyers would prepare sentencing memos in the event of a conviction. 

The judge could even acknowledge Trump's public service as president (although there are some strikes against him in civil court. Trump paid a $25 million court settlement fine in the Trump University case, is appealing n $83 million award in the E. Jean Carroll case, and owes $454 million after a judge found he committed civil fraud). 

A more likely option in the event of a conviction could be probation and a steep fine, according to experts.

But that, too, carries a burden and a stigma. Star witness Michael Cohen repeatedly stated in court testimony that he is still on supervised release. 

Even as the trial continues, the judge could still jail Trump for what he has said are repeated violations of the gag order, although he has expressed his reluctance to do so.

One option is that prosecutors or defense lawyers could ask the Judge Merchan to charge 'lesser included offenses.'

They could seek a jury instruction telling the panel they could charge the defendant with the misdemeanor crime of falsification of business records, rather than the felony crime, according to NYU's Brennan Center.

That could provide a way out if there is a split among the jury, which is includes people who live all over Manhattan and work in finance and other areas.

Trump could still face time, but it would be less likely and for less time. Here it could be up to a year in local prison, plus fines and penalties, according to the Brennan Center.

The option could emerge if the panel buys the prosecution's paper trail establishing the false records, but has doubts about Michael Cohen's testimony about the tick-tock of how it came about – after lawyer Todd Blanche confronted him with text messages and told him: 'That was a lie!'

Fire up the appeals

Trump's lawyers, who have successfully stalled three other criminal indictments, are certain to appeal any conviction.  (Trump and codefendants just Thursday got a ruling that moves ahead with their appeal of a decision allowing Fulton County DA Fani Willis to stay on the Georgia election case).

That would stall any sentence for months.

Officials from the Secret Service have already been involved in discussions of how Trump would be moved and protected if he were to get a short sentence. 

Even with a conviction, Judge Merchan could opt to postpone sentencing while Trump's lawyers appeal the case, putting off a day of reckoning while Trump seeks to overturn it.