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Trump may receive an ‘unconditional discharge’ in hush money conviction − a constitutional law expert explains what that means

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theconversation.com – Wayne Unger, Assistant Professor of Law, Quinnipiac University – 2025-01-09 13:36:00

A judge may impose an unusual sentence on President-elect Donald Trump in his criminal hush money case.

boonchai wedmakawand/Getty Images

Wayne Unger, Quinnipiac University

Donald Trump is set to become the first president of the United States with a felony conviction.

On May 30, 2024, a New York County jury found Trump guilty on 34 counts of falsifying business records in the first degree. That constituted a Class E felony in the state of New York, when the falsification is committed with an intent to defraud, commit another crime, or to aid or conceal the commission of another crime.

Class E felonies carry a potential penalty of up to four years in prison and a fine up to $5,000 for each count. Trial courts reserve discretion, however, to impose a sentence that accounts for other factors, such as the defendant’s criminal history.

Trump is set to be sentenced on Jan. 10, 2025. In recent court filings, Trump has sought to get his guilty verdict thrown out, arguing that the U.S. Supreme Court’s recent decision on presidential immunity in criminal prosecutions means he can’t be found guilty.

On July 1, 2024, the U.S. Supreme Court concluded that the Constitution provides “absolute immunity from criminal prosecutions for actions within his … constitutional authority.” The court also concluded that presidents hold “at least presumptive immunity from prosecution for all his official acts” and “no immunity for unofficial acts.”

To be clear, Trump was convicted of unlawful conduct that occurred before his first term as president. And while it appears that the Supreme Court’s July 1 ruling applies to both state and federal criminal prosecution, as the court held, there is no immunity for unofficial acts, which the falsification of business records undoubtedly is.

A serious-looking man in a suit and tie sitting at a table next to another man.

Donald Trump at a pretrial hearing in his hush money case at Manhattan Criminal Court on Feb. 15, 2024.

Steven Hirsch-Pool/Getty Images

On Jan. 3, 2025, Justice Juan Merchan, who presided over the New York trial, rejected Trump’s argument regarding presidential immunity because the Supreme Court’s immunity decision is not applicable in Trump’s New York case. And on Jan. 9, 2025, New York’s highest court declined to block Trump’s sentencing.

But Merchan has expressed little willingness to impose prison time for the president-elect. In the same order rejecting Trump’s presidential immunity argument, Merchan said, “It seems proper at this juncture to make known the Court’s inclination to not impose any sentence of incarceration.”

Even if Merchan imposed prison time, many constitutional law scholars, including myself, argue that Trump’s sentence would, at minimum, be deferred until after his next term in the Oval Office.

Rather, Merchan has hinted that he may impose “unconditional discharge” as a sentence. That means there would be no penalties or conditions imposed on Trump, such as prison time or parole.

Serving the public interest, not time

According to New York law, a court “may impose a sentence of unconditional discharge … if the court, having regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate.”

Regarding Trump’s case specifically, Merchan continued, “A sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow (Trump) to pursue his appellate options.”

Put simply, it appears Merchan, having considered the totality of the circumstances, including Trump’s election to a second term as president, concluded, as is his right as a judge, that it is in the best interest of the public not to imprison Trump.

Generally, trial courts reserve a tremendous amount of discretion when it comes to imposing sentences. Legislatures can, and often do, set sentencing guidelines, prescribing what penalties trial judges can impose. It is clear in this case that the New York State Legislature allows trial judges to, at their discretion, deliver “unconditional discharge” as a sentence.

Accordingly, if Merchan follows through on his Jan. 3 comment, an unconditional discharge sentence would be legally proper.

Uniquely, Trump has sought dismissal of his guilty verdict before his sentencing. Normally, criminal defendants do not have a legal right to appeal their verdicts until a final judgment is entered against them. In criminal law, a final judgment must include the defendant’s sentence.

But, of course, this is not your ordinary criminal case. As Merchan hinted, moving forward with the sentencing would favor Trump because it would result in a final judgment being entered against him, thus enabling him to properly appeal his guilty verdict.The Conversation

Wayne Unger, Assistant Professor of Law, Quinnipiac University

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Why now and what next?

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theconversation.com – Asher Kaufman, Professor of History and Peace Studies, University of Notre Dame – 2025-01-15 19:09:00

Demonstrators in Tel Aviv
call on the Israeli government to secure the release of the hostages during a Jan. 15, 2025, protest.
Jack Guez/AFP via Getty Images)

Asher Kaufman, University of Notre Dame

A much-anticipated Gaza ceasefire and hostage deal is set to take effect on Jan. 19, 2025 – subject to an Israeli government vote on the package scheduled for the morning of Jan. 16.

The breakthrough comes 15 months into the bloody conflict sparked by an Oct. 7 2023, attack by Hamas gunmen in which about 1,200 Israelis were killed and 251 hostages taken. In the subsequent bombing and siege of the Gaza Strip, some 45,000 Palestinians have been killed.

But why has the breakthrough happened now, and what does this mean for the long-term prospects of a more permanent peace? The Conversation turned to Asher Kaufman, an expert on Israeli history and professor of peace studies at University of Notre Dame, for answers.

What is the main content of the deal?

Not all the details have been ironed out or released. But what we do know is this:

The deal is divided into three stages. In the first stage, 33 women, children and men who are sick or over the age of 55 will be released in stages over 42 days. The hostages, thought to have been held by Hamas in its network of tunnels under Gaza since Oct. 7, include two American nationals. In total, 94 hostages remain in captivity, including 34 thought to be dead.

The Israeli military will also allow Palestinians forced to leave northern Gaza to return, although much of the area and their homes are in complete ruins.

On the 16th day of implementation, negotiations will begin regarding the next stage of the deal, which will include the release of the remaining hostages taken by Hamas. As part of this stage, Israel will withdraw its forces to a defensive belt that will serve as a buffer between the Gaza Strip and Israel.

A man in a headscarf holds aloft a red, green and white flag.
Palestinians celebrate the announcement of the hostage deal on Jan. 15, 2025, in Deir al-Balah, Gaza Strip.
Ashraf Amra/Anadolu via Getty Images

In exchange for freeing the hostages, Israel will release Palestinian prisoners according to an agreed-upon ratio for each Israeli dead or living civilian or soldier hostage. In the initial wave, hundreds of Palestinian women and children currently held in Israeli prisons will be freed. Also, Israel will allow more humanitarian assistance to flow into Gaza.

The third stage of the deal will include the release of the remaining dead hostages and will focus on the reconstruction of Gaza supervised by Egypt, Qatar and the United Nations. At this stage, Israel will be expected to fully withdraw from the Gaza Strip.

How significant is the breakthrough?

Fifteen months of war has devastated Gaza. This deal opens the possibility of ending the fighting there and could allow for the first steps toward reconstruction and stabilization in the Palestinian enclave.

It could also allow the incoming Trump administration to focus on other issues that are more central to its foreign policy agenda, such as a potential new deal with Iran and the resumption of normalization talks between Israel and Saudi Arabia, connected to the creation of a new security alliance with the U.S.

For Israel, it means the possibility of an end to its longest war, which has cost a fortune, eroded its international standing and severely divided its society between supporters and opponents of the government. It could end the state of emergency that has been in effect since Oct. 7, 2023, allowing Israeli society to begin its own recovery.

What issues remain outstanding?

There are big question marks over the later stages of the deal. Important members of Prime Minister Benjamin Netanyahu’s coalition, including Minister of National Security Itamar Ben-Gvir and Minister of Finance Bezalel Smotrich, have been accused of being more interested in a permanent occupation of the Gaza Strip than in the release of the hostages. As such, they will be loath to agree to any measures that would lead to a handing over of governance and security in the enclave to Palestinians.

Throughout the conflict, the Israel government has made it clear that it envisions no role for Hamas in a post-conflict Gaza. But Hamas’ main rival, the Palestinian Authority, has little credibility among Gaza’s residents. It leaves a gaping question of who will govern in Gaza.

There is also concern that if Israel was genuinely interested in full implementation of the deal, it could have reached an agreement that includes the complete withdrawal from Gaza in return for release of all hostages, rather than an agreement implemented in stages.

Why did talks succeed now, but earlier attempts fail?

This deal has been on the table at least since May 2024. But Netanyahu and his government have opposed it due mainly to their desire that Israel remain in control of Gaza.

Some of his government ministers also want to establish Jewish settlements in the Gaza Strip and have explicitly spoken about creating the conditions for reducing the numbers of Palestinians in the strip.

Critics of Netanyahu have also suggested that the prime minister wanted to prolong the war as long as possible because it served him politically.

But the entry of Donald Trump into the equation after his election as U.S. president changed the dynamics between Israel, Hamas and the U.S.

Trump wants to be seen as a deal-maker on the global stage, and Netanyahu – a close ally of the Republican – feels inclined to help Trump on this matter. The timing of the deal allows Trump to claim a role, while also allowing Joe Biden to leave office with a foreign policy “win.”

A man in shorts runs past a wall with people's faces on it.
A man runs past a billboard featuring portraits of Israelis hostages.
Hazem Bader/AFP via Getty Images)

There are also hopes in Israel that forging a deal now clears the way for the resumption of normalization talks between Israel and Saudi Arabia – a process kick-started under Trump’s first administration.

Netanyahu may be betting on a deal with Saudi Arabia to balance out his tarnished reputation at home as the Israeli leader in control when the Oct. 7 massacre occurred.

How will the deal play out in Israel’s fractious politics?

This is the big question that will determine the fate of the deal in the long term.

Its provisions contradict fundamentally the aspirations of many members in Netanyahu’s ruling coalition – and they may do the best they can to sabotage it.

It is still not clear if these right-wing holdouts will exit the government or stay in the coalition under the belief that the latter phases of the deal are not going to be implemented.

What does it mean for the future of Hamas and its role in Gaza?

The agreement does not specify conditions to replace Hamas’ rule in Gaza.

Netanyahu has so far objected to any efforts to facilitate the return of the Palestinian Authority or allow any other Arab or international consortium to run civilian affairs in the strip.

Hamas, for its part, has no interest in facilitating its replacement by other governing bodies and ceding control of Gaza. But having lost key members of its leadership over the course of the war, the militant group is in a less powerful position than it was before Oct. 7.

A cynical view might be that having a weakened Hamas remain in power may actually serve Netanyahu’s interests, allowing him to manage the Israeli-Palestinian conflict rather than trying to resolve it. This had been his approach before Oct. 7, and there are no indications that it has changed.The Conversation

Asher Kaufman, Professor of History and Peace Studies, University of Notre Dame

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Biden’s move to remove Cuba from terror list continues ‘yo-yo’ policy likely to be reversed by Trump

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theconversation.com – Jason M. Blazakis, Professor of Practice and Director of Center on Terrorism, Extremism, and Counterterrorism, Middlebury – 2025-01-15 18:31:00

Could removing Cuba from the U.S. list of state sponsors of terrorism alleviate the plight of the impoverished nation?
Yamil Lage/AFP via Getty Images

Jason M. Blazakis, Middlebury

The Biden administration has signaled to Congress its intention to remove Cuba’s designation as a state sponsor of terrorism.

But here’s the twist: The move will only become legal upon the publication of a Federal Register notice – and that will likely happen under President Joe Biden’s successor, Donald Trump, who looks set to push a much more hawkish approach toward the Caribbean island.

This would mirror what Trump did to Biden at the tail end of the Republican’s first presidency by putting Cuba back on the terror list when a Federal Register notice was published on Jan. 22, 2021 – after Biden’s inauguration.

The ball is now in Trump’s court again. Given his comments and past stances – and notably that of Marco Rubio, a Cuban American politician who is Trump’s pick for secretary of state and has a long-standing record of animosity toward the island’s Communist government – it could well be the case that the yo-yoing of U.S. policy on Cuba continues.

But not necessarily so: The incoming administration has other sanction options at its disposal that could serve to pressure Havana without isolating the nation from the international community.

A matter of timing

The Biden administration’s move to delist Cuba should come as no surprise.

The terrorism designation change was presaged by the decision in early 2024 to remove Cuba from the “not fully cooperating” with anti-terrorism efforts list due to Havana’s counterterrorism efforts.

Throughout the Biden administration, Cuba has worked with U.S. law enforcement – primarily through its engagement with the FBI as well as through the multilateral body Financial Action Task Force – to combat illicit financing, including the funding of terrorism.

But despite these efforts, it was always unlikely that the Biden administration would remove Cuba from the terrorism list before the presidential election in November 2024, especially given the Democrats’ need to look tough on security issues – a key issue in Trump’s campaign.

That, coupled with Florida’s politics – Cuban Americans are an important electoral force in the state and tend to strongly support Cuba’s inclusion on the terrorism list – made a change in the nation’s designation an electoral grenade.

Biden’s move now is less challenging because the next major federal election is two years away, when the midterm House and Senate races could decide control of the legislative bodies where margins are currently slim.

As such, I believe that removing Cuba from the state sponsors of terrorism list is unlikely to hinder the campaigns of Democrats running in congressional races in late 2026.

The silhouette of a man holding a sign reading 'Cubanos con Biden'.
Cubans for Biden campaign in Miramar, Fla., in 2020.
AP Photo/Carolyn Kaster

A legal basis for delisting

Biden’s move is not only politically insulated, but it is arguably legally valid. Cuba meets the legal criteria to be delisted – just as it did when the Obama administration removed Cuba from the list in 2015.

To be eligible for delisting, the State Department’s Counterterrorism Bureau, where I once worked and directed its terrorist designation efforts, would have to illustrate that Cuba has not engaged in providing support for acts of terrorism over the previous six months; and that the nation’s government has provided assurances that it will no longer engage in acts supporting terrorism.

The Biden administration has evidently made a decision, as Obama did previously, that Cuba is no longer supporting leftist communist groups that the U.S. has designated as terrorist.

Cuba has a checkered history of supporting such groups. It was put on the U.S. list in the early 1980s due to its actions supporting groups including Colombia’s FARC and ELN. While the latter is enmeshed in long-term, sometimes rocky peace talks with the Colombian government, the former has dissolved and was removed from the State Department’s Foreign Terrorist Organization list in 2021.

I doubt that Cuba’s yo-yoing on and off the terrorist list is over.

For Trump to add Cuba back on, he will need Rubio’s State Department to prove that Cuba has “provided repeated support for acts of international terrorism.”

Considering that the same set of civil servants with legal expertise just determined that Cuba no longer warranted the listing, this will, at a minimum, require some creative legal interpretation by the lawyers at the State Department and White House.

It is, I believe, likely that political pressure will be applied on these lawyers to make a very different decision – one that will certainly be called into question for its legal validity.

Trump could also threaten a new state sponsor of terrorism listing to gain concessions from Cuba on a broad range of unresolved bilateral issues between the United States and Cuba. For example, the case of Joanne Chesimard, also known as Assata Shakur – a Black Liberation Army activist who killed a New Jersey state trooper and fled to Cuba in 1984 after escaping prison. Her case, given the efforts by the U.S. government to have Chesimard extradited to the U.S., has remained an area of contention between Cuba and the U.S.

And while Chesimard’s case is not an example of Cuban-sponsored terrorism, State Department decisions on new listings and delistings have in the past been linked to nonterrorism issues. For instance, North Korea was removed by the George W. Bush administration because of Pyongyang’s promise to halt its nuclear program and allow inspectors access to its Yongbyon nuclear reactor.

A more targeted approach?

While the Biden administration’s delisting of Cuba may temporarily pivot U.S.-Cuba relations toward warmer ground, there are moves, including the possible relisting of Cuba, that Secretary of State-designate Rubio may be able to make that will reverse this trajectory.

But rather than a knee-jerk relisting of Cuba based on flimsy or nonexistent evidence of Cuba’s support of terrorism, the Trump administration may be wise to focus on the Cuban government’s actual weaknesses – an atrocious human rights record, corruption, kleptocracy and a failed communist ideology that has left the island impoverished.

Here, there are a bevy of sanctioning tools unrelated to terrorism that the Trump administration can deploy and that can laser-focus on the Cuban politicians responsible for those policies, rather than the island’s people as a whole.

Such targeted measures would diminish the impact of U.S. sanctions on a Cuban population already suffering as a result of its government’s human rights and economic record.

As such, the Biden administration’s decision to remove Cuba from the terrorist list gives a glimmer of hope to Cubans who need support from the outside. For example, it makes it easier for U.S. banks to engage in a wider variety of transactions that put bread on the table of Cubans. It may also increase tourism-related travel to Cuba.

Ultimately, in my view, any attempt by Trump to reverse Biden’s decision is unlikely to create the regime change it wants. It will instead only prolong the suffering of Cubans as a whole.The Conversation

Jason M. Blazakis, Professor of Practice and Director of Center on Terrorism, Extremism, and Counterterrorism, Middlebury

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Meta shift from fact-checking to crowdsourcing spotlights competing approaches in fight against misinformation and hate speech

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theconversation.com – Anjana Susarla, Professor of Information Systems, Michigan State University – 2025-01-15 07:46:00

Meta stirred up controversy when it ditched fact-checking.

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Anjana Susarla, Michigan State University

Meta’s decision to change its content moderation policies by replacing centralized fact-checking teams with user-generated community labeling has stirred up a storm of reactions. But taken at face value, the changes raise the question of the effectiveness of Meta’s old policy, fact-checking, and its new one, community comments.

With billions of people worldwide accessing their services, platforms such as Meta’s Facebook and Instagram have a responsibility to ensure that users are not harmed by consumer fraud, hate speech, misinformation or other online ills. Given the scale of this problem, combating online harms is a serious societal challenge. Content moderation plays a role in addressing these online harms.

Moderating content involves three steps. The first is scanning online content – typically, social media posts – to detect potentially harmful words or images. The second is assessing whether the flagged content violates the law or the platform’s terms of service. The third is intervening in some way. Interventions include removing posts, adding warning labels to posts, and diminishing how much a post can be seen or shared.

Content moderation can range from user-driven moderation models on community-based platforms such as Wikipedia to centralized content moderation models such as those used by Instagram. Research shows that both approaches are a mixed bag.

Does fact-checking work?

Meta’s previous content moderation policy relied on third-party fact-checking organizations, which brought problematic content to the attention of Meta staff. Meta’s U.S. fact-checking organizations were AFP USA, Check Your Fact, Factcheck.org, Lead Stories, PolitiFact, Science Feedback, Reuters Fact Check, TelevisaUnivision, The Dispatch and USA TODAY.

Fact-checking relies on impartial expert review. Research shows that it can reduce the effects of misinformation but is not a cure-all. Also, fact-checking’s effectiveness depends on whether users perceive the role of fact-checkers and the nature of fact-checking organizations as trustworthy.

Crowdsourced content moderation

In his announcement, Meta CEO Mark Zuckerberg highlighted that content moderation at Meta would shift to a community notes model similar to X, formerly Twitter. X’s community notes is a crowdsourced fact-checking approach that allows users to write notes to inform others about potentially misleading posts.

Studies are mixed on the effectiveness of X-style content moderation efforts. A large-scale study found little evidence that the introduction of community notes significantly reduced engagement with misleading tweets on X. Rather, it appears that such crowd-based efforts might be too slow to effectively reduce engagement with misinformation in the early and most viral stage of its spread.

There have been some successes from quality certifications and badges on platforms. However, community-provided labels might not be effective in reducing engagement with misinformation, especially when they’re not accompanied by appropriate training about labeling for a platform’s users. Research also shows that X’s Community Notes is subject to partisan bias.

Crowdsourced initiatives such as the community-edited online reference Wikipedia depend on peer feedback and rely on having a robust system of contributors. As I have written before, a Wikipedia-style model needs strong mechanisms of community governance to ensure that individual volunteers follow consistent guidelines when they authenticate and fact-check posts. People could game the system in a coordinated manner and up-vote interesting and compelling but unverified content.

Misinformation researcher Renée DiResta analyzes Meta’s change in content moderation policy.

Content moderation and consumer harms

A safe and trustworthy online space is akin to a public good, but without motivated people willing to invest effort for the greater common good, the overall user experience could suffer.

Algorithms on social media platforms aim to maximize engagement. However, given that policies that encourage engagement can also result in harm, content moderation also plays a role in consumer safety and product liability.

This aspect of content moderation has implications for businesses that either use Meta for advertising or to connect with their consumers. Content moderation is also a brand safety issue because platforms have to balance their desire to keep the social media environment safer against that of greater engagement.

AI content everywhere

Content moderation is likely to be further strained by growing amounts of content generated by artificial intelligence tools. AI detection tools are flawed, and developments in generative AI are challenging people’s ability to differentiate between human-generated and AI-generated content.

In January 2023, for example, OpenAI launched a classifier that was supposed to differentiate between texts generated by humans and those generated by AI. However, the company discontinued the tool in July 2023 due to its low accuracy.

There is potential for a flood of inauthentic accounts – AI bots – that exploit algorithmic and human vulnerabilities to monetize false and harmful content. For example, they could commit fraud and manipulate opinions for economic or political gain.

Generative AI tools such as ChatGPT make it easier to create large volumes of realistic-looking social media profiles and content. AI-generated content primed for engagement can also exhibit significant biases, such as race and gender. In fact, Meta faced a backlash for its own AI-generated profiles, with commentators labeling it “AI-generated slop.”

More than moderation

Regardless of the type of content moderation, the practice alone is not effective at reducing belief in misinformation or at limiting its spread.

Ultimately, research shows that a combination of fact-checking approaches in tandem with audits of platforms and partnerships with researchers and citizen activists are important in ensuring safe and trustworthy community spaces on social media.The Conversation

Anjana Susarla, Professor of Information Systems, Michigan State University

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