Is Trump going to jail? Ex-president's odds of lockup for New York indictment are slim to none, legal experts say

• Donald Trump's odds of getting locked up on his 'hush-money' indictment are slim to none, experts said.
• "I do not see a scenario where Donald Trump spends one minute in jail," one defense attorney told Insider.
• It's more possible Trump could face a fine, community service, or probation, experts said.

The chances of Donald Trump spending any time behind bars over his historic New York indictment are slim to none, according to legal experts. 

First-offenders virtually never go to jail on the kind of non-violent, low-level felonies that Trump's lawyers currently believe he faces, from an indictment with an expected top charge of falsifying business records in the first degree, 

But Manhattan District Attorney Alvin Bragg can still seek to lock Trump up if he is convicted, experts told Insider, given that felony falsifying of business records allows a sentence of anywhere from zero jail time up to a maximum of four years in prison.

Prosecutors can also ask for more likely penalties — including a hefty fine, community service, and probation — in the event that the 76-year-old former president is convicted.

"I can't say for absolute 100% certainty there can't be jail because on the books, he can go to jail," said high-profile defense attorney and former Brooklyn prosecutor Arthur Aidala.

But, Aidala said, "I do not see a scenario where Donald Trump spends one minute in jail."

Aidala and other defense attorneys told Insider that it is beyond rare for a defendant in New York to get locked up on a non-violent, first-offense, E-level felony, which is what Trump could face for his alleged role in a 2016 hush-money payment to porn star Stormy Daniels.

Federal prosecutors have called the $130,000 payment an illegal campaign contribution, meant to influence the outcome of that year's presidential election by keeping Daniels quiet about a sexual encounter she alleges she had with Trump in 2006, four months after future first lady Melania Trump gave birth to their only child. 

Trump has denied any encounter with Daniels and any wrongdoing regarding the payment.

The contents of Trump's indictment remain sealed and will not be made public until his arraignment, currently scheduled for Tuesday.

"In New York State and in particular New York County, it is extraordinarily rare for a 70-something-year-old man, first arrest, who was convicted of a low-level non-violent felony to be incarcerated," said Mark Bederow, a defense attorney and former prosecutor for the Manhattan district attorney's office.

But Bederow noted that there is "no comparison" to this "unprecedented" case as Trump — a frontrunner for the 2024 GOP presidential nomination — has now become the first former US president to be indicted.

"If there was anyone who would be incarcerated over this type of crime, it would be an elected official," said former Manhattan prosecutor, Jeremy Saland, now a lawyer in private practice. "That said, to think for a moment that Trump is going to be incarcerated? That would shock me, for practical reasons and for reasons of allowing anger and divisiveness to fester."

Aidala said that Bragg — a Democratic who has instructed prosecutors in his office to only seek jail or prison time for the most serious of crimes — "would lose all credibility in the entire legal community" if his prosecutors sought to put Trump behind bars. 

"It would be so beyond normal," Aidala said, explaining, "It would fly in the face of everything that [Bragg's] doing in that office, which is to try and keep people out of jail."

Bederow predicted there would even be  Trump detractors who would speak out to say incarcerating him is "dangerous" and a "bad precedent."

Defense attorneys told Insider that besides jail time, prosecutors could try to impose a large fine, community service, or probation on the former president.

Aidala said if prosecutors "really want to embarrass" Trump "they may ask for community service."

Any kind of community service would likely be "private" so Trump couldn't be "out there cleaning a park or picking up garbage," Aidala said. 

Bederow agreed that Trump is unlikely to end up in the slammer, but he pointed out that Trump's former CFO, Allen Weisselberg, who was convicted last year for masterminding a 15-year payroll tax-cheat scheme at the Trump Organization, did time.

New York Supreme Court Justice Juan Merchan sentenced Weisselberg to five months at New York's notorious Rikers Island jail as part of a plea deal.

Also, in 2018, former Trump attorney Michael Cohen pleaded guilty to criminal charges in Manhattan federal court in connection to the the hush-money payments. He was sentenced to three years in prison. 

"The concern that the Trump people should have if he is, in fact, convicted, is take a look at Weisselberg," Bederow said. "He is a man in his mid-70s, who has never been arrested prior to his low-level offense involving the Trump Organization."

White-collar defense attorney Adam Kaufmann, a former investigations chief for the Manhattan district attorney's office, noted Weisselberg's tax crime was a D-level felony.

"That was a larceny case — a substantial tax fraud case," explained Kaufmann. Asked if he thought Trump could go to jail on an even lower-level felony, Kaufmann agreed it was hard to fathom.

"Would I advise a witness to say never? No. But for falsifying biz records? I can't imagine it," he said.