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Sentencing Law and Policy
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Notable general and specific accountings of former Prez Trump’s federal sentencing prospects

By Douglas Berman

In this post from late last week, I asked “Is it too early to try to calculate former Prez Trump’s possible federal sentencing guideline range?”.  In the comments to that post, one helpful reader did basic calculations to suggest Donald Trump would be looking at a guideline range of at least 6.5 years and likely at least 9 years in federal prison.  I presume such a calculation in part accounts for why Prof Jonathan Turley is quoted in this new Hill piece as saying “All the government has to do is stick the landing on one count, and he could have a terminal sentence.  You’re talking about crimes that have a 10- or 20-year period as a maximum.”

As those who follow my blogging about acquitted conduct know, Prof Turley is wise to not that the government only needs to “stick the landing on one count” in order to have all of Trump’s conduct, including any and all conduct associated with any acquitted counts, used in his sentencing guideline calculation.  But, of course, any guideline calculation only serves as, in the words of the Supreme Court, “the starting point and the initial benchmark” for federal sentencing now that the guidelines are advisory.  The sentencing judge will need also to consider all the other statutory 3553(a) factors, including the “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”  (To work though how all the 3553(a) factors should apply to a former President starts to make my head hurt.)

Notably, others are now hard at work at possible guideline calculations based on the Trump indictment.  Specifically, over at Just Security, David Aaron has this lengthy new post titled “How Much Prison Time Does Former President Trump Face?  Applying the U.S. Sentencing Guidelines.”  Sentencing fans should check out the full post for the specific calculations, but here is how the post starts:

Now that the public has seen the current list of federal charges against former President Donald Trump, there is a long road ahead. If the defendant is ultimately convicted, that road will lead to sentencing.  The Espionage Act charges the defendant faces carry a maximum prison sentence of ten years.  The Tampering (and related Conspiracy) and Concealment charges each carry a maximum prison sentence of twenty years.  The Scheme to Conceal and False Statements charges each carry a maximum prison sentence of 5 years.  Of course, in any criminal case, numerous factors affect the sentence, and focusing on the statutory maximums can be misleading.  Federal law, specifically 18 U.S.C. § 3553, directs courts to impose a sentence based on a list of considerations.  The U.S. Sentencing Commission issues Sentencing Guidelines to assist courts and promote consistent application of criminal law.  Sentencing trends in similar cases can provide reference points, but only if similar cases exist.  This quick note gives an idea of how a sentence would be calculated, with the caveat that issues such as sentencing on multiple counts of conviction, related conduct, and new factual developments could arise.

Prior related post:

UPDATE:  Another accounting of how tocan count up former Prez Trump’s guideline sentencing range can be heard via Doug Passon’s Set for Sentencing podcast in this new episode titled “Reality Check: Unpacking the Trump Indictment.”  As explained in this show notes: “IN THIS EPISODE: Updates to the guideline calculations now that we have a better picture of the alleged conduct; Comparing Trump’s case to Reality Winner; Other musings on the inner workings of the federal criminal system.”