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August 7, 2023

How many of the "171 Easy Mitigating Factors" might former Prez Trump argue at a federal sentencing?

Some recent posts related to former Prez Trump's legal woes are generating lots of comments; in one thread, one comment stated that it is "probably malpractice for a defense lawyer not to have" the legendary sentencing resource "171 Easy Mitigating Factors (and Counting): Cases Granting, Affirming, Or Suggesting Mitigating Factors."   That resource, authored by Michael R. Levine, provides cites to hundreds of federal precedents suggesting a wide array of grounds for mitigating a sentence.  I share the view that any competent federal defense attorney should be using this resource at sentencing (and I have uploaded below the Table of Contents, which includes contact information for the author for those seeking to purchase the full text).

In part because all federal defendants should receive competent representation, I hope former Prez Trump's lawyers in both of his federal criminal cases make sure they have a copy of "171 Easy Mitigating Factors."  And, in putting this post together, I got to thinking about the question in the title of this post.  From a quick scan of the TOC of "171 Easy Mitigating Factors," I came to the view that quite a significant number of these factors might be potentially applicable in former Prez Trump's case if he ever actually faces a federal sentencing.  Also, I got a a bit of chuckle over how certain "Mitigating Factors" read in light of the Trump prosecutions: might his lawyers someday argue for mitigation because, eg, "defendant is a law abiding citizen who 'just did a dumb thing'" or "prosecutor’s manipulation of the charges, even if no bad faith" or "defendant is older or elderly and presents less risk of recidivism"?

Though a bit tongue-in-check, I do mean for this post to flag the important reality that former Prez Trump is sure to have lots of significant mitigating arguments to seek to avoid a lengthy prison term (or any prison term) if he is ultimately convicted on any federal charges.  Of course, there is a long (and winding?) legal road ahead before any sentencing particulars are to be front and center in his cases.  But, even though former Prez Trump is likely one of the rare federal defendants unlikely now to consider any plea deal, it still seems important to note now that his defense attorneys have a reasonable basis to advise the former President that they would have lots of viable mitigating sentencing arguments to make even if he is convicted after a trial.


Some prior related posts:

August 7, 2023 at 04:44 PM | Permalink


Sandy Berger, Joe Biden, Hillary Clinton and Kevin Clinesmith.


Posted by: federalist | Aug 7, 2023 5:14:39 PM


The DOJ is corrupt to the core.

Posted by: federalist | Aug 7, 2023 5:25:28 PM

I have used Mr. Levine's publication for years and reorder it well before every federal or state sentencing. That he has kept the price the same for the last 20 years is amazing; it's worth ten times what he charges.

Posted by: defense attorney | Aug 7, 2023 5:52:16 PM

I agree. A tremendous resource. I've even seen prosecutors looking at it to anticipate arguments. I have a question though which I believe was previously asked by Mr. Levine himself: Assuming Trump were convicted, under the circumstances of either federal case, would having been President be a mitigating or aggravating factor?

Posted by: anon11 | Aug 7, 2023 7:06:18 PM

Professor Berman, thank you for your very favorable comments about my magnum opus.

Posted by: Michael R. Levine | Aug 7, 2023 7:16:15 PM

My quick analysis shows that at least 37 of the 171 mitigating factors could arguably apply, but some of them are no doubt duplicative. I note also that although Mr. Levine entitles his publication "171 Easy Mitigating Factors," may of the factors have subfactors, so that actual number is well over 200.

Posted by: Emily | Aug 7, 2023 7:52:34 PM

Being President and a former President definitely qualifies him for the Leadership Role enhancement. And abuse of a position of trust. At Trumps age, any sentence of 10 years or longer is pretty much a wrap on his life, even if home confinement at Mar-a-Lago.

Posted by: Jim Gormley | Aug 7, 2023 8:37:37 PM

I think there's much to be said for each of the first five comments on this thread.

But N.B. the presumption of innocence attaches to DJT just as it does to anyone else. The eagerness with which people normally on the defense side brush past it has a message.

On the other hand, DJT talks too much and often doesn't think about what he's saying. If I had been back in WHCO when he was there, my blood pressure would have been through the roof.

Posted by: Bill Otis | Aug 7, 2023 8:51:51 PM

Bill, they called him a traitor, hamstrung his natsec advisor, spied on his campaign and then gaslighted him--not saying Trump is perfect, but there's only so much one could take

Were I Flynn and that POS Emmett Sullivan called me a traitor, I would have just said, "Your Honor, those are fighting words, and it's easy for a judge to say them in a court, quite different if we were to take this outside."

Posted by: federalist | Aug 8, 2023 9:30:03 AM

federalist --

The Left never accepted Trump's election, and helped engineer Russiagate and other assorted mechanisms to handicap his Presidency, which was, on the whole, successful nonetheless. His conduct after the 2020 election was, however, imprudent at best and not in keeping with the traditions I expect of the Office.

As I've been saying on Ringside at the Reckoning, we have a degraded culture and degraded standards, and degraded governance was sure to follow. As we are seeing, it has.

Posted by: Bill Otis | Aug 8, 2023 1:02:12 PM

federalist --

The Left never accepted Trump's election, and helped engineer Russiagate and other assorted mechanisms to handicap his Presidency, which was, on the whole, successful nonetheless. His conduct after the 2020 election was, however, imprudent at best and not in keeping with the traditions I expect of the Office.

As I've been saying on Ringside at the Reckoning, we have a degraded culture and degraded standards, and degraded governance was sure to follow. As we are seeing, it has.

Posted by: Bill Otis | Aug 8, 2023 1:02:12 PM

Biil, the DOJ suppressed information germane to the election, and then, in collusion, Biden lied through his teeth in the debate. They got ballot integrity measures tossed. No. The election was not fair or free. Sorry--Trump may have had his tactics off, but he has every right to feel that they cheated him and the American people. Those mechanisms to handicap his presidency were far worse than claiming fraud.

In a sane world, Jack Smith would be behind bars for the rest of his life or exiled. And everyone involved in suppressing the Hunter laptop should get LWOP.

As would Emmett Sullivan.

Posted by: federalist | Aug 8, 2023 1:26:57 PM

federalist, if in a sane world Jack Smith should be behind bars for the rest of his life, you should be next to him in a padded cell.

Posted by: anon12 | Aug 8, 2023 2:49:29 PM

"His conduct after the 2020 election was, however, imprudent at best and not in keeping with the traditions I expect of the Office."

Imprudent??? I call that the understatement of the year!

Posted by: Da Man | Aug 8, 2023 2:57:16 PM

"His conduct after the 2020 election was, however, imprudent at best." And at worst, criminal and traitorous.

Posted by: anon | Aug 8, 2023 3:13:30 PM

anon12--Jack Smith is working hand in hand with the corrupt DOJ, which is actively interfering with elections. You sickos are cool with this.

Posted by: federalist | Aug 8, 2023 3:33:27 PM

MUELLER, on May 29, 2019: 'If we had had confidence that the president clearly did not commit a crime, we would have said so'.

Now, this is not quite the same as "If we could have indicted Trump, we would have"....but awfully, awfully damn close.

The vast majority of the public believe that Trump and his alleged co-conspirators are being treated no differently than any other accused citizens. Their rights have not been "trampled"..not in the least.

The DOJ has done nothing out of the ordinary. They investigated. Took their findings to a Grand Jury, and the GJ indicted. Where is the travesty of justice in that?

As much as "federalist" and his snowflake buddys bellyache and whine, I think Trump, et al (including the 1/6 rioters) have so far, been treated no differently than anyone else in similar circumstances.

Perhaps federalist needs to invest in a pair of "big boy pants".

Posted by: SG | Aug 8, 2023 8:18:39 PM

Da Man --

"Imprudent??? I call that the understatement of the year!"

The comments section could use a dose of understatement.

Posted by: Bill Otis | Aug 8, 2023 9:09:35 PM

Trump is unravelling. His public statements today are crude and disgusting. A disgraceful man. But his lackeys and Kool-Aid lemmings do love him and will blindly follow him over the cliff.

Posted by: anon | Aug 8, 2023 10:07:52 PM

Trump was the first president to try to interfere with the peaceful transfer of leadership. He and his minions concocted traitorous plans to keep power, the very evil against which the Founders tried to protect us. Trump is the most pernicious, malignant, and divisive force in American history. Generations from now, Americans will rate him at the head of the list comprised of Benedict Arnold, Aaron Burr, and Jefferson Davis.

Posted by: anon | Aug 9, 2023 10:49:47 AM

anon, you truly are blind

Both Obama and Biden signed off on a completely bogus Logan Act investigation on Flynn. which was designed to kneecap the incoming administration. Then there was the Russia hoax--yet again, Biden and Obama.

As for the 2020 election--Biden and the DOJ colluded to exclude HUnter's laptop from the debate, and the Dems undid ballot integrity laws--Trump was entitled to fight fire with fire.

Posted by: federalist | Aug 9, 2023 12:15:21 PM

federalist, a true maga-type, divert, divert, divert, what about--what about---surprised you don't list Benghazi -.everything you mention will rate a footnote in the history books if that. By contrast, Trump's traitorous conduct will rate chapters, if not whole volumes.

Posted by: anon | Aug 9, 2023 12:21:35 PM

federalist, Trump does deserve first place an anon's list. He and his cult-following attorneys did indeed concoct a plan to block Biden from assuming the presidency by organizing fake electors.


Posted by: anon12 | Aug 9, 2023 1:18:15 PM

"Trump was the first president to try to interfere with the peaceful transfer of leadership." So idiot--I am showing that you are just wrong about "first."

As for the "fake" electors---this is a load of nonsense. Trump had the right to say, "i think we won these states and please accept these electors." It's called lobbying, which is constitutionally protected activity.

Posted by: federalist | Aug 9, 2023 2:13:35 PM

federalist, you and Trump enjoy calling folks names. Are you. like him, still in the first grade?

Judge Michael Luttig disagrees with you and thinks Trump is a clear and present danger to our country.


"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: anon12 | Aug 9, 2023 3:23:47 PM

These comments (and so many others like them) prove that justice is not blind, on any level. Peoples idea of justice is aligned with their brand of politics, which underscores why our legal system is so badly screwed up…
I wish I wasn’t so naïve to want to live in a world where unequivocal facts were just that- and legal decisions were made based solely on just that. That all those wielding power to make legal decisions did so only after leaving their political and religious affiliations at home…

Posted by: Shanta | Aug 9, 2023 4:13:31 PM

Even assuming Luttig is right (and he's not), you still have to fit Trump's conduct into the relevant statutes. Trying to convince Congress (and Pence) to accept his slate of electors ain't fraud. And the 18 USC 241 allegation is a joke.

Posted by: federalist | Aug 9, 2023 8:38:38 PM

Levine's publication is an amazing resource. I highly recommend it.

Posted by: Michigan attorney | Aug 10, 2023 5:38:28 PM

federalist, 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 5:43:55 PM

I think that: (a) the 2020 election was not fair (for lots of reasons), not the least of which was Joe Biden's collusion with the DOJ to suppress the Hunter story and (b) no one knows who won it, given the ballot integrity laws that were suspended. Plus, there's the hamstringing of Trump by the outgoing Obama administration (which was a crime against democracy). Thus, Trump had the justification to try to "litigate" the 2020 election in Congress. Had Congress voted the other way, which it had every right to do, then Trump would be President, and that would be that.

I don't care about gussied up "law" when we are talking about Constitutional rights. The J6 charges are ridiculous.

Posted by: federalist | Aug 14, 2023 10:49:49 AM

federalist, 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. You should reconsider your increasingly futile efforts to defend him.

Posted by: anon12 | Aug 15, 2023 9:30:46 AM

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