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June 9, 2023
Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range?
In one of my early articles, I discussed at length the challenges for defense attorneys presented by the intricacies of federal sentencing law. As I explained:
From the very outset of representation, a defense attorney needs to assess the range of possible trial and sentencing outcomes for his client in order to properly craft an effective defense strategy and evaluate the prospects for striking a beneficial plea bargain. In the federal system, this not only entails basic investigation concerning the defendant’s guilt, but also requires counsel to make an initial assessment of the defendant’s possible sentence under the Federal Sentencing Guidelines.
This old article came to mind this morning as I contemplated whether to do a post about reports that former Prez Donald Trump is now facing a multi-count federal indictment related to his handling of classified documents. Though I doubt former Prez Trump will be seriously considering any plea deals anytime soon, his defense lawyers should still be starting on guideline calculations.
Meanwhile, though it seems the specifics of the indictment will not be public until early next week, a few press pieces are already discussing former Prez Trump's statutory sentencing exposure based on reports of the apparent charges in his indictment:
From Forbes, "What Crimes Was Trump Charged With In Federal Documents Case? Here’s What We Know — And How Much Prison Time He Could Face"
From the New York Post, "Here are the charges and how many years Trump faces in federal Mar-a-Lago indictment"
Even though we do not know exactly the nature of all the charges, the New York Post piece concludes by asserting that "If convicted on all seven charges, the ex-president could face a 75-year prison sentence." Of course, adding up the maximum sentence on all counts serves as a poor metric for assessing what likely sentence an indicted person might really face. The applicable federal guideline range is a better metric, though that range is only advisory and the sentencing of a former president (and current presidential candidate) surely raises a number of unique 3553(a) sentencing issues.
Especially because we are still awaiting word from the Supreme Court on the use of acquitted conduct at sentencing (background here and here), I am tempted to use the indictment of former Prez Trump to try to bring more attention to that issue. Based on current law, federal prosecutors could and likely would seek to have former Prez Trump sentenced on — and have his guideline range driven by — all their allegations even if he were acquitted on six of seven counts. Interesting times.
UPDATE: The federal indictment of former Prez Donald Trump was unsealed this afternoon and can be found at this link. The indictment runs 49 pages and has a total of 37 counts brought against the former president (with stat maxes adding up to 400 total years in prison, I believe).
June 9, 2023 at 10:42 AM | Permalink
Comments
With former President Trump, the acquitted/uncharged conduct issue is even bigger than counts in the pending indictment. There have been multiple investigations over the years into questionable business practices that did not result in criminal charges and there is also the various women who have brought forth claims of sexual misconduct (one now proven in a civil trial). How much of that is fair game for a judge to consider at sentencing. While most of that will not be part of the guidelines calculations, it certainly could come up in considering how much an upward departure should be (or why a downward departure would be inappropriate).
Posted by: tmm | Jun 9, 2023 12:40:28 PM
Trump, like all criminal defendants, deserves a fair trial with all the trappings of due process. However, he likely isn't too concerned about the trial of this case before Judge Cannon. Remember, she's already demonstrated the great lengths she will go to demonstrate her fealty to the individual who gave her a seat on the bench. Let's assume the government's case is airtight and the evidence is overwhelming. At the close of the government's case, Trump's attorneys will move for a Rule 29 judgment of acquittal. If Judge Cannon simply finds the government's case was wanting and enters a judgment of acquittal, that decision is unreviewable. US v. Scott, 437 US 82, 91 (1978). The Double Jeopardy Clause would prevent any appellate review regardless of how off the mark it might be. If Judge Cannon were to wait until after the jury were to convict and then enter a post-verdict Rule 29, then the government could seek appellate review of that decision. Id. at 91, n. 7. I doubt her law clerks would allow her to make that mistake!
Posted by: Redlon | Jun 9, 2023 1:03:42 PM
Assuming an Espionage Act charge and obstruction charge (as reported), looks like governing guideline provision will be 2M3.3
Base offense level: 29 (top secret documents)
3B1.3: +2 for abuse of position of trust
3C1.1: +2 for obstruction of justice
Forthcoming 4C1.1: -2 for zero-point offender
Total offense level: 31
Criminal history category: I
31/I -> 108-135 months
With -3 on a plea for acceptance of responsibility (not going to happen, but just for thoroughness):
28/I -> 78-97 months
Posted by: Monty | Jun 9, 2023 1:57:06 PM
Mr. Trump's attorneys should immediately obtain a copy of the latest edition of my publication, "171 Easy Mitigating Factors." It can be ordered from my website at www.levinemchenry.com. Importantly, I'm now thinking of adding mitigating factor No. 172 entitled, "Having been past President of the United States." Or should that be reworded? In any event, the only thing that worries me is that I can't determine if that factor is mitigating or aggravating. What do you folks think?
Posted by: Michael R. Levine | Jun 9, 2023 6:14:34 PM
Mr. Levine, I have found your publication immensely helpful for my clients. Mr. Trump might too, but I doubt it.
Posted by: fedpd | Jun 9, 2023 8:54:02 PM
I recommend Michael's excellent book to all defense counsel, including Donald Trump's.
Posted by: Bill Otis | Jun 9, 2023 9:50:25 PM
If Trump's niece Mary, a psychologist, is correct in her assessment of Donald's psychiatric problems, one wonders what he might do to escape conviction and imprisonment for the rest of his natural life (since he is 76 years old). There are many possible scenarios, including the possibility that after Trump might be convicted and sentenced, the President (Biden), might commute his sentence, so that he doesn't actually go to prison (thinking the way Gerald Ford did when he pardoned former President Nixon, so that the nation could move on from Watergate). Despite Trump's wealth, it seems most improbable that he would flee the country (along with his Secret Service protectors?). The final thought is that all men have their limits of what they can endure. Trump is already facing 2 indictments now, and more seem almost certain to be forthcoming (including from Georgia). Yet, at some point, Trump will certainly consider taking his own life. The Federal Sentencing Guidelines may be the least of it. Despite what Trump appears to have done to justify being impeached twice and now indicted twice (with more sure to come), we should pray for him and for our country's form of dynamic Government, which can even survive THE GREAT LIE and January 6, 2021. These are not conventional criminal cases.
Posted by: Jim Gormley | Jun 10, 2023 6:37:18 AM
I have read the indictment in full. It is devastating. In fact, if true, the allegations in indictment arguably establish Mr. Trump as the the most pernicious, malignant, and traitorous American politician since Aaron Burr and Jefferson Davis.
Posted by: Texas cowboy | Jun 10, 2023 1:07:22 PM
Texas cowboy, somewhat over the top, but I understand your outrage. Paragraph 3 of the indictment is all you need to read.
Posted by: Amy | Jun 10, 2023 1:35:11 PM
Amy, this morning (Sunday) Bill Barr called the indictment devastating and damning.
Posted by: Texas cowboy | Jun 11, 2023 4:04:51 PM
I have read the indictment from beginning to end. How is it possible that this man ever became President? What a reckless fool who exposes top secret defense material, battle plans, nuclear plans, to our enemies (who send spies to Mara Lago); who places us and our children and grandchildren in danger. How can anyone ever vote for him again to be Commander in Chief? And the Republicans running against him (except for Christy and Hutchinson), defend and enable him--all hypocritical cowards.
Posted by: Emily | Jun 12, 2023 9:31:13 AM
Assuming that some of the statutes require proof of willfulness, does DJT have a mens rea defense on the ground that he thought he was still president when he retained the documents? There's plenty of evidence to support that defense.
(Some levity is always useful.)
Posted by: Da Man | Jun 12, 2023 12:59:41 PM
Bill, thanks for the plug!!
Posted by: Michael Levine | Jun 12, 2023 5:31:36 PM
Da Man --
"Assuming that some of the statutes require proof of willfulness, does DJT have a mens rea defense on the ground that he thought he was still president when he retained the documents? There's plenty of evidence to support that defense....(Some levity is always useful.)"
Believe me, I've seen defense lawyers make crazier claims than that. And given the strength of the indictment, they're going to have to think of SOMETHING.
One thing I've noticed is how similar Trump's posture is to the posture of your classic defendant. Very little if any claim that he didn't do what he's charged with doing, and lots of claiming that the prosecutor is a schmuck. This flops in the typical case and I suspect it will flop here as well.
Posted by: Bill Otis | Jun 12, 2023 6:41:54 PM
Michael Levine --
Your book is meticulously researched and well-organized so that it's easy to use. It should be on the shelf of everyone who practices criminal defense.
Posted by: Bill Otis | Jun 12, 2023 6:43:49 PM
Bill, from your mouth to Mr. Trump's lawyers' ears!!
Michael
Posted by: Michael R. Levine | Jun 12, 2023 7:29:15 PM
Emily, some Republicans contenders for the nomination must have seen your comment above calling them hypocritical cowards for not taking on Trump. According to Politico, Niki Haley just started singing a new tune:
"If this indictment is true, if what it says is actually the case, President Trump was incredibly reckless with our national security,” Haley said, adding that her husband serves in the military. “This puts all of our military men and women in danger, if you’re going to talk about what our military is capable of or how we would go about invading or doing something with one of our enemies.”
She added, “If that’s the case, it’s reckless, it’s frustrating and it causes problems. You know, we’re looking now, this is the second indictment. We’re looking at a third indictment coming in with Georgia.”
Posted by: anon13 | Jun 12, 2023 7:35:08 PM
