What sentence might Trump get, if found guilty? By Matt Tait

www.pwnallthethings.com

What sentence might Trump get, if found guilty?

Matt Tait

8 - 10 minutes

With the Trump indictment last week, several prominent media organizations and commentators have started asking all sorts of questions about the case. Most fall into four categories:

    Are the facts, as alleged, substantially correct?

    As a matter of law, does the law support the charges?

    Was the Special Counsel correct to charge Trump, as a matter of discretion? and

    How long would Trump serve if found guilty?

The first of these questions will be answered by the jury. The second will be answered by the judge, and by the appellate judges in the Eleventh Circuit or the Supreme Court who will handle the various questions of law that get appealed. The third question is largely a subjective question: It’s a question particularly suited to partisan punditry, because it allows them to avoid arguing about or even engaging with the facts or the law.

But that fourth question—what would the sentence be if Trump were convicted—is different. It’s a weirdly technical question, and one that most folks—including many publications that should frankly know better—seem to keep getting very wrong. For example, the Independent, Washington Examiner, New York Post, Forbes, and so on, have all said that, if found guilty on all charges, Mr. Trump faces up to 400 years in prison.

No. He doesn’t.

The “400 years” number here comes from a basic summation of statutory maximum sentences for each of the charged offenses. The first 31 charges all have a statutory maximum term of imprisonment of 10 years. Charges 32-35 has a maximum of 20. Charges 36 and 37 both have a maximum penalty of 5. If we add all those numbers up we get to this big scary number of 400 years.

Don’t do this.

It’s stupid.

Sentences do not work like this in the United States.

If anyone ever tells you what the “maximum sentence” of an offense is, or that someone is “facing X years in jail” where X is a big number, stop listening to them immediately. When prosecutors do it, it is to scare a defendant into making a guilty plea. When defense attorneys do it, it’s to rile up supporters with a fake number about how unreasonable the prosecutors are. When pundits do it, it’s because they have no idea what they are talking about.

Not only is the 400 years number divorced from reality, it’s not even a real maximum. A sentencing judge can do as they please within their courtroom, and could absolutely sentence Trump to a hundred billion years if they really wanted. It would be stupid and immediately appealed and reversed, but a 400 year sentence would be too.

More importantly, penalty-summation just completely misunderstands how sentencing actually works in the United States. It’s just not remotely how sentencing works. It does nothing other than yield a completely useless number.

OK. But what’s the real number, if he were convicted (itself a big if)?

That’s an involved question, but we don’t have to just guess. Sentences aren’t random, and we can roughly work out where the sentence would land within a range, so long as we put in the work, and make a few assumptions about how the mitigating and aggravating factors will apply. That process is a bit, well, boring and actuarial, and involves diving pretty deep into the US Sentencing Manual and sentencing precedents to get a feel for where the sentence would end up.

So let’s dive in.

Let’s start with the first 31 charges in Trump’s indictment. These all relate to unlawful retention of specific classified documents, mostly, but not exclusively, at the top secret level. If convicted, the guilty counts in this group will all be grouped together under 2M3.3, which carries a base offense level of 29 when at least one of them implicates top secret information:

On top of this base level, prosecutors will push for several enhancements:

    +2 for obstruction of justice.

    +2 for abuse of a position of trust.

    +4 enhancement for his role as the organizer or leader of the criminal activity with five or more participants, or which was otherwise excessive.

At the sentencing stage, Trump’s defense will argue against those enhancements, and may push for the inclusion of mitigating factors. The usual one to push for is acceptance of guilt, especially if the defendant pleads guilty, although I think that will be a hard sell for Trump. In any case, at the sentencing stage Trump’s team would be fighting at an adjusted offense level of 37 for these charges, if found guilty of unlawful retention of any or all of the top secret documents.

The second group of charges all generally relate to obstruction of justice, and so we go to the Sentencing Manual’s 2J1.2 section:

Here Trump would be looking at a base offense level of 14, and the special counsel would push for the +3 enhancement under 2J1.2(2), because Trump’s actions resulted in a substantial interference with the administration of justice. The special counsel would also likely push for the +2 enhancement under 2J1.2(3) because the scheme was extensive in scope, for an adjusted offense level of 19.

For obstruction, this isn’t the end of the analysis, because Obstruction offenses (2J1 offenses) can convert into Accessory After the Fact (2X3.1) offenses if the obstruction substantially impedes an investigation or prosecution of another criminal offense:

Here’s 2X3.1:

Here, 2X3.1 starts with a calculated base offense level based on the offense that was being obstructed. Here that’d be the base level 29 (from the base offense level of the unlawful retention) minus 6, because of 2X3.1(a)(1), for a calculated base offense level of 23. Since the 2X3.1 offense level of 23 is higher than the 2J1 offense level of 19, the obstruction offense converts to the Accessory After the Fact offense, with the higher base offense.

This offense is also subject to enhancements and mitigations, and the special counsel would again push for a +2 for abuse of trust and +4 for Trump’s role as the organizer or leader of the criminal activity with five or more participants, or which was otherwise excessive, for a total adjusted offense level of 29.

Donald Trump has no prior convictions, so has a Criminal History Category of I. We then map both offenses to a sentencing guideline range via the Sentencing Table in the Sentencing Guidelines:

So in summary, if found guilty for retention of any (or all) top secret documents in the first 31 charges, Trump will be looking at a sentence with a guideline in the 210-262 month range. If found guilty on the obstruction charges, Trump would be looking at a sentence of 87-108 months. Those numbers assume that the aggravating factors as alleged all stick and no mitigating factors apply. Those two sentences would likely run concurrently, for an aggregate sentence of 210-262 months, or 17.5-21 years.

Trump would not spend all of that time in federal prison. His sentence would be automatically eligible for 50% off under the First Step Act with good time credit. He would also be eligible for compassionate release if his health substantially deteriorates, and his sentence could be further commuted or pardoned by a president of either party.

Trump would not lose protection from the Secret Service if convicted. His protection by them is by statute, so continues to apply regardless of whether Trump is in federal prison (unless Congress amends the legislation), but how exactly that would work in practice, I have no idea. I suspect the Secret Service don’t know either, and will cross that bridge if and when they come to it.

But those are the top-line numbers for Trump. If found guilty on essentially any of the classified document retention charges, Trump will be staring down some real prison time. That’s, of course, still a very big if. Trump’s prior status as president makes this case far more complicated than it would be for any other defendant, and he would need to be found guilty unanimously by a Florida jury—something that is by no means certain.

That does all add up to a very serious sentence. These are big boy crimes, and the penalties don’t look like a slap-on-the-wrist.

But it’s also not 400 years.