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August 3, 2023

After another federal indictment, another set of federal sentencing issues for former Prez Trump

It is barely 48 hours since former Prez Donald Trump was formally indicted on four new federal charges and only a few hours since his "not guilty" plea.  But, as revealed by the pieces below, there has still been plenty of time for various outlets to start talking up some sentencing issues:

From the AP, "The judge assigned to Trump’s Jan. 6 case is a tough punisher of Capitol rioters"

From Newsweek, "Donald Trump Conviction Could Be 'Death Sentence'"

From Politico, "641 years behind bars? No, but Trump’s risk of prison is real."

From Set for Sentencing, "The 3rd Trump Indictment (Sentencing Guidelines): Everything Nowhere All at Once"

From the Washington Post, "Is Trump going to jail? Here’s how much prison time he could face."

For all sorts of reasons, I am quite disinclined to get too focused on potential guideline ranges given that the sentencing of an elderly former president raises so many unique and significant 3553(a) sentencing issues.  And, of course, we are a long way from any convictions, let alone sentencings.  But, as always, folks are more than welcome to provide sentencing takes (or other takes) in the comments.

Some prior related post:

August 3, 2023 at 11:04 PM | Permalink


This prosecution is a joke.

Posted by: federalist | Aug 4, 2023 9:18:14 AM

Federalist, it may be a joke, but nobody's laughing, especially not the former grifter in chief.

Posted by: anon14 | Aug 4, 2023 9:53:47 AM

I suggest Trump's attorneys obtain a copy of Michael Levine's monograph,"171 Easy Mitigating Factors." Query to Professor Berman and everyone else: Is being a former President a mitigating or aggravating factor?

Posted by: Emily | Aug 4, 2023 10:00:18 AM

Ten years should do fine.

Posted by: anon | Aug 4, 2023 10:44:43 AM

Federalist: would you take the same tone if Joseph Biden were being prosecuted for the same conduct? No offense, but I have my doubts.

Posted by: Really? | Aug 4, 2023 12:43:35 PM

When John Edwards was prosecuted, and I loathe John Edwards, I called BS.

Trying to convince Congress/VP to adopt his slate of electors isn't a crime. Calling for peaceful protest of a problematic election isn't a crime.

Posted by: federalist | Aug 4, 2023 1:11:11 PM

Federalist: I don't disagree with you that trying to convince Congress to adopt an alternate slate of electors isn't itself a crime. But you will never convince me that setting a match to a fuse soaked with kerosene that leads to a powder-keg is not a crime when the powder-keg explodes. His words and actions were designed to (1) claim publicly that he won more votes than JB and (2) get an angry mob to storm the capital to interfere with the certification process. I grant that he called for peaceful protest, but you also don't know whether the prosecutor has evidence he knew in advance that any of the militia groups that were going to be in D.C. on 1/6/21 intended to use illegal means to try to prevent the certification. Of course there will be a causation issue - did his words and action cause or further the Capitol breach? Maybe/maybe not. But until I see what evidence the prosecutor has of what he knew before he opened his mouth and told people to fight like hell, I'll withhold judgment.

Let me give you an alternate hypo: suppose as President I rail against the SCOTUS and say the justices are a bunch of corrupt cronies and that if they are allowed to hear argument in case X v. Y, they will take more of your rights away. So march on down to the Supreme Court and fight like hell to prevent that from happening. If the crowd storms the SCOTUS during oral argument in that case in an effort to prevent the court from hearing the case, can I really claim an absolute First Amendment defense? No. But there might be a jury issue on it.

What you and others on this Blog seem to think is that the prosecution itself should fail on the pleadings because the charges criminalize speech full stop. That's plainly wrong: at best, the jury instructions will require the jury to determine if this was protected speech or unprotected incitement.

Posted by: Really? | Aug 4, 2023 2:28:41 PM

"His words and actions were designed to (1) claim publicly that he won more votes than JB"---so what? Getting an angry mob to storm Capitol? Unless he expressly called for violence, you got nothing. And the militia--so the possible presence of militia somehow takes away his right to criticize the election??? Are you kidding?

Your Supreme Court hypo still reflects protected speech.

And First Amendment stuff is a matter of law---for really really obvious reasons.

Posted by: federalist | Aug 4, 2023 2:44:20 PM

Federalist, then if you're correct, I'm sure the District Judge, or a panel of D.C. Circuit Judges, will see it that way and dismiss the charges. And if the charges are so plainly without merit, then I'm sure DJT will seek and obtain reimbursement of his legal fees under the Hyde Amendment.

But I doubt you're correct. And if the special counsel has evidence of coordination in advance (that DJT knew if he used certain language it would be taken as a signal to attack) I doubt any First Amendment defense will be of much help to him. That's precisely why you (and other DJT supporters) want this case dismissed on the pleadings: because the evidence gathered (but not yet disclosed) may paint a very different picture.

Posted by: Really? | Aug 4, 2023 5:20:39 PM

I'm not aware of any statements by Trump that reach the level of criminal incitement. That said, his attitude towards his 2020 loss was deeply irresponsible. He should have admitted that he lost, just as prior Presidential losers have done.

It is easy for me to believe that Trump broke laws. The problem I have with the indictments is that I am absolutely certain that Hunter Biden broke a lot of laws, and it looks likely that Joe Biden did as well (bribery). The difference in prosecutorial enthusiasm is palpable.

Posted by: William Jockusch | Aug 5, 2023 10:04:54 AM

Joe Biden committed bribery because Hunter traded on his name? Then who's going after Jared?

Posted by: Really? | Aug 5, 2023 11:34:37 AM

Yes, because…

1. He knew it.
2. He, and other family members, profited from it.

Posted by: TarlsQtr | Aug 5, 2023 12:09:43 PM

Well then it's too bad those same conservative Justices that you praise DJT for appointing have gutted the laws that might have applied to such conduct. Bribery requires the promise of official action on a specific official act by the public official. (By the way, who's going after Jared for the Saudi payments?)

So now I see the rationalization for the run-up to Jan 6 taking shape: "the election was stolen from me because the media suppressed the Hunter Biden issue; therefore, I (DJT) had every right to engage in whatever means necessary to preserve my rightful place in office, including undermining faith in the election system for the next generation." Or maybe it's more simple: "they came at me with the Russia nonsense right out of the gate and ruined the first two years of my presidency so I'm going to do whatever I can to undermine the legitimacy of Biden's presidency."

Posted by: Really? | Aug 5, 2023 12:56:50 PM

Rationalization? Please. I'll quote my own sentence: "That said, his attitude towards his 2020 loss was deeply irresponsible." Is that a rationalization?

I'll go out on a limb and say that taking $10 million at a time for influence is also deeply irresponsible. I'll admit that "bribery" may have been the wrong crime for me to bring up. BUT just as the justice system has gone after Trump in the wake of his deeply irresponsible attitude towards the 2020 election, they could have, but did not, go after Joe Biden in the wake of his deeply irresponsible attitude towards taking money from friends of the CCP.

NO, I do not approve whatsoever of Trump's attitude, and I think it contributed to Jan. 6. But I also do not approve of the difference in prosecutorial enthusiasm between the Trump and Hunter Biden cases. One can be disappointed in both sides. In this case, I am.

Posted by: William Jockusch | Aug 5, 2023 4:53:01 PM


What laws were overturned by Trump’s justices that made influence peddling by foreign governments, with the money going into your own family’s bank accounts, legal?

Most of the rest you say about Trump is true, but without context. Trump delegitimized elections? According to the Dems, there has not been a legitimately elected Republican POTUS since 1998. Trump is merely an extension of that. At the very least, Hillary is no less traitorous. After all, she actually DID collude with the Russians.

Again, put Hill, Biden, and Trump on the same cell block and make a sitcom.

Posted by: TarlsQtr | Aug 5, 2023 10:57:08 PM

Correction above. 1988, not 1998.

Posted by: TarlsQtr | Aug 5, 2023 10:58:14 PM

I don't think that sitcom would be funny.

Posted by: Really? | Aug 6, 2023 7:59:07 AM

William Jockusch --

Pretty much nailed it. Being sleazy but (perhaps) not having crossed the line into criminality is not the most shining qualification to be President. The choice we're facing next year has me looking for real estate on Neptune.

Posted by: Bill Otis | Aug 6, 2023 2:21:08 PM


Here's some food for thought.

Posted by: federalist | Aug 7, 2023 9:15:08 AM

Bill Otis, greetings! I see that after his recent arraignment, Mr. Trump publicly said or posted, "If you go after me, I'm coming after you." To me this statement could justify a a prosecutor's motion to revoke Trump's bail. Doubt it would be granted at this stage, but what do you think? Michael

Posted by: Michael R. Levine | Aug 7, 2023 10:49:22 AM

Michael Levine, you are a fascist thug. Trump gets to make these sorts of threats as they are not overtly threatening unlawful activity. That whole First Amendment thingy . . . . Trump, of course, is going to push the line, and he has that right.

I am sure you were all copacetic with that appalling gag order issued against Roger Stone for daring to criticize the judge. That fascist thug judge made him come to her and apologize. She should be hooted off the bench.

Posted by: federalist | Aug 7, 2023 11:29:54 AM

Federalist, sorry I hit such a nerve with you. Wow. I've been called lots of things in my life, but "fascist thug" is a first! As I learned in the first grade, "sticks and stones will break my bones, but names will never hurt me." If you give me your true name, I can recommend a good anger management class for you.

Posted by: Michael Levine | Aug 7, 2023 11:49:38 AM

Federalist, calling Michael Levine a "fascist thug" for posing a reasonable question betrays you own insecurity and distorted view of Trump's precarious legal position. Trump's remark could easily be construed as an attempt to intimidate witnesses, the prosecutor, or even the judge. He has made similar remarks in the past.
If any of my clients had made such a remark after having been arraigned, the U.S. Attorney would have had the client before the judge in a heartbeat. Whether bail would be revoked would depend on the client's attitude and history and the particular judge. You are an intelligent guy; all the more reason to try to control yourself in the future.

Posted by: federal public defender | Aug 7, 2023 11:58:27 AM

You are an idiot, FPD. That courts and prosecutors routinely violate the First Amendment isn't my problem. Perhaps you should be more zealous in your advocacy.

The fact is that a statement that he's going to come after people, while distasteful to your delicate sensibilities, is 100% protected by the First Amendment, a right which he obtains. "could be construed as" is just oh so much BS. As for witness intimidation--hmmm, is he even referring to witnesses? His statement could be construed as, I guess, but that's why we have First Amendment law.

And yes, Michael--you are a fascist thug, as you're cheerleading the possible imprisonment of someone for 100% protected speech. And if some judge revokes bail for a First Amendment protected statement, then that judge ought to be hooted off the bench.

You going to prosecute Chuck Schumer for judge intimidation over his reap the whirlwind comments--if not, then STFU.

Posted by: federalist | Aug 7, 2023 12:11:27 PM

Federalist, you say I was "cheerleading the possible imprisonment of someone for 100% protected speech." I wasn't "cheerleading" anything. I was simply posing a question to my Bill Otis whom I know to be a forceful advocate with much experience with federal criminal cases and the possible consequences of Trump's post-arraignment remarks.

Second, were Trump not on conditions of bail from a federal judge, of course his remarks would be absolutely protected by the First Amendment. However, he is now in a different status and has to watch his tongue. As "federal public defender" notes above, Trump's remarks could be construed as an attempt to intimidate witnesses, the prosecutor, or even the judge. If the judge so construed his remarks in that way, she would have every right to impose sanctions of some kind, including revocation of the bail. But I still would like to hear Bill's take on this.

Federalist, let's try to get along, Best regards from your favorite fascist thug Michael Levine.

Posted by: Michael Levine | Aug 7, 2023 12:32:16 PM

Michael R. Levine --

If I thought DJT were an actual threat to harm the prosecutor or anyone in the prosecution orbit, a serious motion to revoke bail would be in order. But I don't think that and I doubt anyone else does either. On my own Substack, I've repeatedly called DJT a blowhard and a variety of other less than complimentary things. The guy talks way too much and is careless about what he says. This would be bad enough on its own but is worse than foolhardy as a defendant. But, as is often the case with him, it's just talk.

I also think jailing a former President before trial, unless unarguably essential for safety reasons, would further inflame an already badly divided country. If I were the judge, I wouldn't do it.

P.S. I continue to think your book about 171 exculpatory factors is the best in its field. It's probably malpractice for a defense lawyer not to have it.

Posted by: Bill Otis | Aug 7, 2023 2:51:03 PM

Bill, thanks for the excellent analysis. You make a persuasive case for no revocation of release, at least at this stage of the case. And thanks for your kind words about my publication.

Be well,

Fascist thug, Michael

Posted by: Michael R. Levine | Aug 7, 2023 2:56:14 PM

To those arguing that "defraud" in 371 requires injury to property rights, and so is an ill-fit for DJT's alleged conduct, I commend this piece:


Posted by: Really? | Aug 7, 2023 2:58:50 PM

"Second, were Trump not on conditions of bail from a federal judge, of course his remarks would be absolutely protected by the First Amendment."

So, under your rationale, a defendant can't make comments like that? Why not? He ain't been convicted of squat. What he said isn't a threat of violence, so there's no basis to hale him into court for a bail revocation hearing. And you said "to me"--that makes you a fascist thug. You think that a motion to revoke bail is supported by that comment--I think that such a motion should draw sanctions. People get to speak their mind in this country.

Really? It's still protected speech.

Posted by: federalist | Aug 7, 2023 3:23:45 PM

Federalist, keep going I love the publicity.

Best regards,

Your favorite fascist thug.

Posted by: Michael R. Levine | Aug 7, 2023 5:13:25 PM

awww how cute. You cannot defend what you actually said--so you try to make this about me calling you a fascist thug. Instead of owning your fascist thug fantasies, you want to play cutie-pie.

You and I both know you cannot intelligently deal with the issues elicited by Trump's right to speak and the double standards here. You cannot remotely address the points made by Andy McCarthy.

Really? you are really seriously challenged--first of all, Reason is of uneven quality, but let's just take one statute, 18 USC 241 that they are using--the plain language obviously does not fit. And as for the fraud--that dog won't hunt either because Trump has the right to try to convince Congress to vote any way he wants the Reps/Sens to vote.

Posted by: federalist | Aug 8, 2023 10:16:01 AM

federalist Judge Michael Luttig believes that Trump has no real defense to the charges and is a "clear and present danger" to our democracy.


"Luttig sought to shoot down possible legal defenses that Trump could mount to address the federal charges to which he has pleaded not guilty. The former judge said that by charging Trump with criminal offenses of conduct, not speech, special counsel Jack Smith ensures that there could not be a First Amendment defense from Trump’s legal team.
Asked by Harlow if Trump could use the premise that the former president actually thought he’d won the election, Luttig also struck down that defense notion “because the evidence is overwhelming that the former president knew full well that he had lost the election. And the standard will be, could a reasonable person have believed otherwise in the face of the overwhelming evidence to the contrary.”

The former judge on the 4th US Circuit Court of Appeals was a key witness at the January 6 committee hearings last year and throughout his career he was known as one of the top “feeder judges” on the court of appeals level, sending 45 of his 47 clerks to clerk for justices on the high court.

Trump ally and attorney John Eastman, who drafted the point-by-point memo claiming Pence could stop the certification on January 6, was also a clerk for Luttig. Pence relied on Luttig’s guidance when he decided to defy Trump and certify the results of the election on January 6.

While testifying last year before the House Select Committee tasked with investigating January 6, Luttig called Trump “a clear and present danger to American democracy.”

Posted by: anon15 | Aug 9, 2023 4:51:44 PM

Maybe the learned judge could explain how lobbying Congress and VP to give him the election is somehow illegal . . ..

Posted by: federalist | Aug 10, 2023 1:57:46 PM


You are fighting a good fight.

If attempting a novel legal theory, as Trump did, is somehow “illegal,” then did Biden break the law with his student loan scam? In fact, I’d say it more easily fits into the realm of “fraud,” as it was an attempt to steal something tangible, billions of taxpayer dollars.

Posted by: TarlsQtr | Aug 10, 2023 4:00:03 PM

Tarls, federalist, and Bill Otis, what do you think of the following?

"Conservative Case Emerges to Disqualify Trump for Role on Jan. 6. Two law professors active in the Federalist Society wrote that the original meaning of the 14th Amendment makes Donald Trump ineligible to hold government office."


Posted by: anon12 | Aug 10, 2023 5:45:27 PM


I cannot read it behind the paywall, but I hope the Republican voters disqualify him in the primaries.

When I’m arguing against his prosecution, I’m arguing against my own self-interest. Even he winning the nomination is a tragedy in my opinion. I didn’t want him in 2016 either.

I’m just not willing to convict a man of a crime he either didn’t commit or cannot be proven he committed, as a lot of these charges are mind reading.

Posted by: TarlsQtr | Aug 10, 2023 7:05:09 PM

Tarls, I appreciate your response. I hope you get a chance to read the article because I would like your take on it.

Posted by: anon12 | Aug 10, 2023 8:45:29 PM

The hole Mr. Trump is in just keeps getting deeper. The Georgia indictment confirms that he has been and remains a pernicious and malignant force in American politics, right up there with Benedict Arnold, Aaron Burr, and Jefferson Davis. His enablers should reconsider their increasingly futile and pathetic efforts to defend him.

Posted by: anon12 | Aug 15, 2023 9:33:00 AM

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