Why Trump Probably Didn’t Have to Post Bail
Since a raft of changes to New York’s bail laws took effect three years ago, “bail reform” has been a rallying cry for conservative politicians who have blamed the revisions for increased crime rates.
But this week, the changes will benefit a figure many conservatives have supported: Donald J. Trump.
The former president will almost certainly not have to post bail after his arrest on Tuesday, thanks to policies that took effect in 2020. The laws eliminated bail for most misdemeanors and nonviolent felonies.
Here’s how bail works: When a defendant is held before trial, a court may release him or her in exchange for a payment intended to ensure a return to court. The money is typically returned at the end of the case if the defendant has followed court orders.
Critics have long decried the practice, which favors the wealthy. People who cannot come up with the money themselves — or with help from family or friends — either have to stay in jail or get a bail bond, which is a contract with a licensed bail agent who will pledge the money in exchange for a fee.
New York State caps those fees. For example, if the bail is over $10,000, an agent can charge 10 percent of the first $3,000 and smaller percentages for the rest, according to the Department of Financial Services. But the bondholder might also ask for collateral, like a deed to a home, which would be forfeit if the defendant fails to follow court orders.
Cheryl Bader, associate clinical professor of law at Fordham University, said that she thought it was unlikely that Mr. Trump would have been required to post bail even before the laws were changed. Prosecutors would have had to show that there was reason to believe he would not show up to court.
“I think the court would find that that’s not likely,” she said. “Trump is often unpredictable, but I think he’s not likely to abscond and run away to Mexico.”
And even if a judge had required bail, it would not have been difficult for Mr. Trump to pay. That’s in stark contrast to the defendants she and her students work with at a law clinic in Manhattan Criminal Court.
“He would be free to work with his lawyers and defend himself without finding himself on Rikers,” she said of Mr. Trump. “The same is not true of many of the clients that my students and I represent.”
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