Donald Trump may never be sentenced for his 34 convictions. Here's why

President-elect Donald Trump already has a lot to be happy about when it comes to his election victory, but here's another reason he can celebrate: his New York criminal sentencing may never occur.

The reasons range from the political firestorm that a sentence could fuel to the new legal defenses he can raise as president-elect and later as president.

"The odds of him going to jail are zero at this point," Mark Bederow, a New York City criminal defense lawyer and former Manhattan prosecutor, told USA TODAY. "He's not going to sweep subways and push papers and do community service either – it's just become untenable."

Trump was convicted on May 30 on 34 felony counts of falsifying business records to cover up paying porn star Stormy Daniels to stay silent during the 2016 presidential campaign about an alleged sexual encounter between them. The potential sentence for the crimes could be nothing at all or it could take various forms such as community service or prison.

Even before Election night, the real estate mogul had a possible way out of his sentencing, which is still scheduled for Nov. 26. Trump has argued that some of the evidence the jury heard at his trial, which ended in late May, runs afoul of the presidential immunity decision the Supreme Court later handed down in July, and so the convictions should now be tossed out.

Manhattan Judge Juan Merchan is scheduled to rule on that argument on Tuesday, although Trump's election means there could be new arguments for altering proceedings. For example, Trump has twice before tried to move the case out of Merchan's hands and into a federal court, arguing federal courts are better suited to address the legal issues he is raising. That argument failed most recently in September, but he could make a new version of it based on his election.

In a statement to USA TODAY, Trump campaign spokesperson Steven Cheung said the American people elected Trump with "an overwhelming mandate to Make America Great Again."

"It is now abundantly clear that Americans want an immediate end to the weaponization of our justice system, so we can, as President Trump said in his historic victory speech, unify our country and work together for the betterment of our nation," Cheung said.

Manhattan District Attorney Alvin Bragg's office didn't respond to a request for comment.

Trump has also faced criminal charges in two federal cases and one Georgia state case, although one of the federal cases has been on appeal since being dismissed, and the Department of Justice is weighing dropping both federal cases in light of Trump's election victory.

Here are five reasons why Trump might never be sentenced:

Reason No. 1: Supreme Court gave Trump a potential lifeline

The Supreme Court's July 1 presidential immunity ruling in Trump's federal election interference case included a section that could negate the New York convictions.

Five of the six Republican-appointed justices – all but Justice Amy Coney Barrett – said a jury in a criminal case against a former president can't hear various forms of evidence about official presidential actions.

Trump has since argued that even if the hush money payment to Daniels and the falsified business records weren't official presidential acts, some of the evidence presented to secure both the indictment and his convictions ran afoul of the Supreme Court's ruling. For instance, Trump is objecting to testimony from his former White House communications director, Hope Hicks, about events while he was president.

Even if Trump fails to persuade Merchan, he could ask for an appeals court to review Merchan's ruling before any sentencing takes place.

Mitchell Epner, a New York litigator and former New Jersey federal prosecutor, said it's "overwhelmingly likely" that the Nov. 26 sentencing date would be wiped off the calendar based on the immunity issue, even if Judge Merchan rules against Trump.

He said the Supreme Court's ruling will likely give both Merchan and an appeals court pause about going forward with sentencing before an appeal plays out. And Trump can point to other types of cases, such as cases against police officers, where appeals on immunity issues are typically allowed to play out before trial.

Robert McWhirter, who ran for the Democratic nomination for Arizona attorney general in 2022 and has written a book on the U.S. Constitution, wasn't so sure. Under the standard New York criminal procedure rules, defendants must file their appeals within 30 days after their sentencing.

"I would imagine that there has to be a final sentencing," he said.

Reason No. 2: Political firestorm

Sentencing Trump now that he's president-elect could also create a political firestorm.

That may not sound like a legal argument, but it's still context Merchan and appeals courts will likely consider, Bederow said.

"I do think that any judge can't ignore the 800-pound gorilla in the room, which is this guy was just resoundingly voted to be the next president," Bederow said. "If (Merchan) were to sentence him, this country is going to get torn apart even further at the seams."

Reason No. 3: Legal roadblocks based on election

Trump's election victory gives him new legal arguments for fighting the sentencing. The Supreme Court's presidential immunity ruling voiced concerns about court proceedings interfering with the presidency. The court said a president can't be prosecuted for official acts unless doing so "would pose no 'dangers of intrusion on the authority and functions of the Executive Branch.'"

DOJ policy also cautions against prosecuting a sitting president, although it isn't binding on a New York state court.

Trump could argue similar concerns apply to a state court sentencing a president-elect or imposing a sentence that would extend past his Jan. 20 presidential inauguration. The legal idea is that, under the U.S. constitutional system, power is divided between the national government and states, and states can't intrude beyond their sphere.

Legal experts disagree over whether concerns about state court overreach would only come into play after Trump is inaugurated, or whether Merchan or an appeals court would also entertain them at an earlier juncture.

Reason No. 4: A new trial could face new issues

If Trump gets his convictions thrown out and is shielded from prosecution during his next presidency, Manhattan prosecutors could theoretically pursue a retrial afterward. But at that point, Trump could say retrying him violates his constitutional due process rights because evidence and testimony have aged.

"When defendants have that long of a gap between the first trial and the second trial, they will often argue that they can't be put on trial fairly four years later because witnesses' memories will have faded, some people may have died," Epner said.

Reason No. 5: Trump will get older

If Trump's convictions stand the test of time but he still faces sentencing years from now, his age could also weigh in his favor. In an interview before Trump's election victory, Catherine Christian, a former Manhattan prosecutor, told USA TODAY that even Trump's current age would work to his benefit in a sentencing proceeding.

"It will mess with his brand, but the man is 78 years old, and for someone who's 78 who has no (prior) criminal convictions, the court will look at that," Christian said.

Trump would be 82 at the end of his upcoming four-year term.

"Even in cases where somebody became a fugitive, at a certain age, they're just not going to be punished, and Trump would be the furthest thing from a fugitive," Epner said.

It all adds up to a significant boon for the soon-to-be repeat president.

"The leverage in this whole situation, the whole dynamic, has just changed radically since Tuesday," Bederow said. "Trump is in just a much stronger position, both in terms of public perception and in getting out of this."

This article originally appeared on USA TODAY: 5 reasons Trump may never be sentenced in New York hush money case