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August 1, 2023

Noticing one count in the latest federal indictment of former Prez Donald Trump could carry the death penalty

In many cases, even high-profile ones, I tend to be disinclined to focus too much on a defendant's sentencing prospects until a plea or a jury conviction seems forthcoming.  But with historic and repeated indictments of a former President who is also a front-running presidential candidate, it is hard not to talk about sentencing possibilities as soon as there is an actual indictment.  And, via an email tonight on the CrimProf listserve, Professor Jack Chin flagged a particularly interesting added sentencing element flowing from this latest indictment of former Prez Trump:

So one of the offenses Trump was charged with today carries a possible death sentence.  The NYT reports that seven people died in connection with the January 6 riots, so the conspiracy against rights is death eligible.  I assume a death notice will not be filed, and oppose the death penalty in all cases myself, but, if one supports the death penalty in principle, would seven be enough?

18 USC 241:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

August 1, 2023 at 10:00 PM | Permalink

Comments

Former AUSA and Assistant Attorney General Harry Litman has recently suggested that because Trump (and his Secret Service protective detail) could not be safely housed in any American prison, following sentencing, he would likely be a candidate for prolonged home incarceration (with electronic monitoring) at Mar-a-Lago! Another commentator this evening has also suggested that even if Trump is convicted in one or more of his upcoming trials, he would be likely to remain out on bond pending his appeals thru the U.S. Supreme Court (which could take 3+ years). There is also the possibility that several of the other Presidential candidates have indicated that if they are elected, they would commute Trump's sentences to "time served", so that he does not have to go to prison. They say that in America, we don't imprison former Presidents; it's just too unseemly. Since Trump received only 4% of the vote in D.C. in 2020, it appears that he will be facing an unsympathetic jury pool too. As the first trial date draws near, will Trump blink and cut a plea deal to avoid incarceration?

Posted by: Jim Gormley | Aug 1, 2023 10:52:31 PM

Trump's 1980s book was entitled "The Art of the Deal". His next book may be entitled, "The Art of the Conspiracy".

Posted by: Jim Gormley | Aug 1, 2023 10:54:36 PM

Long after we are gone, our grandchildren and their children and their children's children will read the history of this time with amazement, horror and shame. They will wonder how the American people could have been so blind as to elect as President this arch conman, charlatan and criminal. They will equally wonder how the vast majority of the party of Lincoln could have been such pathetic cowards to enable and defend this dangerous narcissist.

Posted by: Michael R. Levine | Aug 2, 2023 12:21:20 AM

I agree with Mr. Levine. No doubt Trump has gained infamy as one of the most pernicious and malignant personalities in American history right up there with Benedict Arnold, Aaron Burr, and Jefferson Davis. By not standing up to this evil person, the vast majority of Republicans have proven themselves to be feckless cowards.

Posted by: anon14 | Aug 2, 2023 9:50:09 AM

anon14 --

"By not standing up to this evil person, the vast majority of Republicans have proven themselves to be feckless cowards" -- says the guy (or girl or whatever) who hides in anonymity.

Posted by: Bill Otis | Aug 2, 2023 10:19:23 AM

Bill Otis: Isn't there a difference between making anonymous comments on a criminal law blog and giving money to Donald Trump's PAC to fund the defense of his pernicious criminal acts, trying to steal the rights of the American people to choose the President of the United States; and then there is stealing hundreds of the most highly classified documents in the Government, and taking them to Mar-a-Lago to store in boxes in a bathroom and on a stage, and to share them with people who have no security clearance at all? Making anonymous blog comments is nothing at all by comparison. Maybe he is like the former AUSA who founded the famous blog, "Beneath Their Robes", about Federal Judges.

Posted by: Jiim Gormley | Aug 2, 2023 10:28:20 AM

Trump was a very good president.

These charges are a joke. They are quite bluntly, lawless. Worse, they are an embarrassment to the country.

Posted by: federalist | Aug 2, 2023 11:38:44 AM

Federalist, I used to respect your intelligence; what happened to you? Does the Kool-Aid taste that good?

Posted by: Emily | Aug 2, 2023 11:51:31 AM

https://www.nationalreview.com/2023/08/this-trump-indictment-shouldnt-stand/

Posted by: federalist | Aug 2, 2023 11:52:50 AM

Federalist, surely you are just being an agent provocateur here. Since when is an indictment by a federal grand jury "lawless"? And while I can't say that Trump should be rated up there with Benedict Arnold, Aaron Burr, and Jefferson Davis, he comes pretty damn close.

Posted by: anon13 | Aug 2, 2023 11:54:05 AM

Federalist, Trump was "a very good president" even though hundreds of thousands died from his macho covid policies; but then he did make the trains run on time.

Posted by: Dave from Texas | Aug 2, 2023 11:57:14 AM

Emily, let's look at things objectively--

Trump forcefully pushed back against Russia.
He appointed good Justices (unlike the Jackson debacle).
He sought to enforce immigration laws.
Got NAFTA redone (over the politicking Nancy Pelosi)
Operation Warp Speed.
Armed Ukraine.
Clobbered Wagner mercenaries in Syria.
Blocked Nordstream 2.
Supported HBCs
Rationalized the tax code.
NATO 2% spending.
Changed game re: China.
Tightened screws on North Korea.
Energy policy.
Sniffed out Biden corruption in Ukraine.

Emily, what say you regarding Emmett Sullivan's cover for prosecutors' failure to turn over Brady material. And are you cool with that?

Posted by: federalist | Aug 2, 2023 12:01:36 PM

Federalist, While I disagree with much of the list you post, I do grant that on occasion he made the trains run on time. But you still haven't answered what is "lawless" about the federal grand jury indictment of Trump--I mean this most recent one of the three.

Posted by: Emily | Aug 2, 2023 1:28:39 PM

Number 2 on Federalist's list ("He appointed good Justices ...") is all Republicans really care about. Now that they view SCOTUS as a tool not just to ensure conservative policy goals but to thwart liberal ones (no matter how specious the reasoning), appointing "good" justices apparently provides cover for everything else.

Posted by: Da Man | Aug 2, 2023 1:42:45 PM

Unlike Joe "Baby Formula" Biden . . . .

Emily, come on. He engaged in political speech. All protected by the First Amendment.

Posted by: federalist | Aug 2, 2023 2:05:40 PM

Answer my question, emily-re: Judge Sullivan

Posted by: federalist | Aug 2, 2023 2:06:14 PM

Federalist, paragraph 10 b of the indictment alleges that Trump and his co-conspirators "organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws. This included causing the fraudulent electors to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they were legitimate electors. Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the Defendant succeeded in outcome-determinative lawsuits within their state, which the Defendant never did. The Defendant and co-conspirators then caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6."

Somewhat more than mere "political speech," wouldn't you say? What has Judge Sullivan to do with whether Donald Trump is a criminal?

Posted by: Emily | Aug 2, 2023 2:58:02 PM

Answer Emily's question, Federalist-re: offering false slates of electors.

Posted by: Da MAn | Aug 2, 2023 3:35:24 PM

Da Man,

I suspect you were among those wanting RBG to retire so Obama could choose her replacement. Yet, you bitch about conservatives wanting “their justices.” To that, I say so what? Picking justices has been a struggle since the Dems and Bork, Thomas, Gorsuch, and ACB. Stop with the crocodile tears. The Dems started the war and are now pissed off that Berlin is surrounded.

Not to mention, I’ll put the brains and commitment to the constitution from the right up against the left any day. The leftist justices almost always vote in a block on big cases.

Posted by: TarlsQtr | Aug 2, 2023 4:01:07 PM

Emily, Da Man,

Stop. Just. Stop.

Read federalist’s article.

Fraud has a specific meaning, “… a scheme to swindle victims out of money or tangible property.…” Where is the fraud, in a legal sense?

Read the article.

Obstruction: “ As for obstruction, Americans, presidents included, have a right to attempt to influence Congress, even based on dubious or imagined evidence. To establish obstruction, Smith must prove that Trump’s efforts at persuasion were corrupt — again, in the sense that he knew his badgering and lobbying had no factual or legal merit. The concept of corruption is meant to reach clearly criminal conduct, such as evidence manipulation or witness tampering. It has never been understood to reach wrong-headed legal theories.”

Read the article.

What you are asking for is a criminal solution to a political crime. If I had a vote, it would be to impeach. He’s a dirtbag.

Oh, yeah, read the article.

Posted by: TarlsQtr | Aug 2, 2023 4:12:18 PM

I also find it humorous that in the line of great “traitors” such as those named by anon 13, (Jefferson Davis, Aaron Burr, Benedict Arnold, etc.,), the names Hillary Clinton and Puddinhead Joe are not included. Not to mention Garland and many at the top levels of the DOJ, national security apparatus, etc.

Hillary actually DID collude with the Russians in an attempt to impact a legal and fair election.
Joe DID take money from the Ukrainians to impact administration foreign policy. Trump was impeached for it. Joe DID take money from China for influence.

Posted by: TarlsQtr | Aug 2, 2023 4:21:41 PM

"fraudulent"???? Huh. Try alternate slates.

Posted by: federalist | Aug 2, 2023 4:24:33 PM

The biggest tragedy of this whole situation, which no one has really talked about, is how easily Trump supporters no only claimed the Democrats committed fraud to win the election, but how willing those supporters were willing to believe it. (Indeed, I have conservative friends of mine predicting fraud by Democrats weeks before election day, as if they were all reading the same blog or watching the same news show.) Why did these people claim or predict fraud and believe it had occurred? Not because they had a shred of evidence of such fraud, but because of the implicit accusation that their enemies are the kind of people who would resort to fraud to win. That's the real story here and no one wants to talk about it.

Posted by: Da Man | Aug 2, 2023 5:57:23 PM

Federalist: "Try alternate slates." So if my teenage son uses the internet to hire an imposter to take the SAT for him, he can just say the imposter was an "alternate test-taker" when he's caught and charged with defrauding the testing service? Thanks for the brilliant legal advice! (Oh - one other question: will that excuse work even if he's not a Republican?)

Posted by: Really? | Aug 2, 2023 6:19:50 PM

Good Lord the Trumpkins are revealing their gullibility on this thread.

Saying the quiet part out loud.

Signed
Reliable Republican Voter for 35 years

Posted by: Fat Bastard | Aug 2, 2023 6:22:07 PM

Never thought I'd see Trump cultists on this thread. Trump truly does have Mesmer or Rasputin-like powers. Trump is truly dangerous if he can beguile these folks.

Posted by: Dave from Texas | Aug 2, 2023 6:27:45 PM

Jim Gormley --

"Isn't there a difference between making anonymous comments on a criminal law blog and giving money to Donald Trump's PAC to fund the defense of his pernicious criminal acts, trying to steal the rights of the American people to choose the President of the United States...?"

Sure there's a difference, but it's still laughable for anon14 to accuse a huge swath of other people of cowardice while hiding his own name and thus scampering away from accountability. (Commendably in my view, you always sign what you write).

P.S. I believe that even the worst of criminals should have an adequately funded defense.

Posted by: Bill Otis | Aug 2, 2023 6:35:08 PM

Da Man, Really, and Fat Bastard,

I noticed you didn’t really address the issues in the previous posts.

Da Man,

The election was rigged, but not fraudulent. Voting rules were changed outside the scope of state constitutions, there were fake investigations in order to defeat him, and the Praetorian Guard of the media played right along.

It was not fraudulent, however, as the votes cast favored Biden.

Really,

Trying novel legal theories to stop election results may be a damnable offense, but not illegal.

“Indeed, the House Jan. 6 (J6) Committee’s chairman, Bennie Thompson (D-Miss.), voted to challenge the certification of the 2004 election results and then-President George W. Bush’s reelection. His fellow J6 Committee member, Rep. Jamie Raskin (D-Md.), sought to challenge Trump’s certification in 2016. Then-House Speaker Nancy Pelosi (D-Calif.) and Senate Judiciary Committee Chairman Richard Durbin (D-Ill.) both praised the challenge organized by then-Sen. Barbara Boxer (D-Calif.) in 2004.”

Throw them in jail?

Again, every count points towards impeachment, not criminal proceedings.

Posted by: TarlsQtr | Aug 2, 2023 6:44:40 PM

How about you all read this from a bona fide conservative:

https://reason.com/volokh/2023/08/02/retribution-deterrence-and-the-case-for-prosecuting-trump-for-conspiring-to-overturn-the-2020-election/

Posted by: Really? | Aug 2, 2023 10:34:47 PM

Really,

The writer loses me when he repeatedly uses the word “defraud” or “fraud,” when the statutory language talks about fraudulently stealing something tangible from the government, such as money or property.

Posted by: TarlsQtr | Aug 3, 2023 12:59:26 AM

TarlsQtr, you're wrong. The conspiracy statute says defraud, but it does not (like the mail and wire fraud statutes) say "or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." A long line of cases establisg this:

Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 54 L.Ed. 569 (1910) (“[I]t is not essential that such a conspiracy shall contemplate a financial loss or that one shall result. The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.”); Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924) (“It is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane, or the overreaching of those charged with carrying out the governmental intention.”); Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) (affirming Hammerschmidt); United States v. Haga, 821 F.2d 1036, 1040 (5th Cir. 1987) (applying Hammerschmidt); United States v. Hopkins, 916 F.2d 207, 213 (5th Cir. 1990) (same); United States v. Martin, 332 F.3d 827, 834 (5th Cir. 2003) (same); see also United States v. Coplan, 703 F.3d 46, 61 (2d Cir. 2012) (applying Hammerschmidt and its progeny despite noting “infirmities in the history and deployment of [§ 371]”).

Posted by: Really! | Aug 3, 2023 8:01:36 AM

Trump's attorneys are touting the First Amendment defense to statements he made. But statements that are integral to a crime are not protected by the FA. For example, if I'm encouraging people to invest a Ponzi scheme, my words of recruitment are not protected by the FA. If I tell someone to destroy evidence, my words are not protected by FA. If I tell someone to vote twice, my words are not protected by FA.

Posted by: anon14 | Aug 3, 2023 9:52:50 AM

"The election was rigged, but not fraudulent. Voting rules were changed outside the scope of state constitutions, there were fake investigations in order to defeat him, and the Praetorian Guard of the media played right along."

TarlsQtr, was the 2016 election "rigged" because James Comey took it upon himself to run his mouth about the email server investigation? Or is it rigged only when a conservative loses?

Posted by: Da Man | Aug 3, 2023 10:37:02 AM

Andy McCarthy, no Trump fan, has this to say:

https://themessenger.com/opinion/trumps-jan-6-indictment-a-political-scheme-to-influence-the-next-election

Posted by: federalist | Aug 3, 2023 10:38:20 AM

Twice impeached, thrice indicted--the perfect role model for our kids and grandkids?!

Posted by: Michael R. Levine | Aug 3, 2023 11:16:58 AM

Federalist, greetings! You wrote above the Trump "was engaged in political speech"
But as Anon14 writes above, "statements that are integral to a crime are not protected by the FA. For example, if I'm encouraging people to invest a Ponzi scheme, my words of recruitment are not protected by the FA. If I tell someone to destroy evidence, my words are not protected by FA. If I tell someone to vote twice, my words are not protected by FA." So Trumps speech, even if associated with political content, is not protected speech and can constitute part of criminal course of action.

Posted by: Michael R. Levine | Aug 3, 2023 11:53:29 AM

Just read Andy McCarthy, then talk.

Posted by: federalist | Aug 3, 2023 1:17:03 PM

Really,

Read Ciminelli v United States, just decided in May 2023.

Posted by: TarlsQtr | Aug 3, 2023 10:30:11 PM

Da Man,

None of those actions I used to define “rigged” happened in 2016.

What did happen was Hillary committing a crime that came out at an inconvenient time for her. (I’m not even talking about her crimes in colluding with the Russians). Suddenly, the FBI had the expertise and manpower to finish an “investigation,” in record time prior to the election and let her off the hook. She should have been taken in cuffs that day.

Posted by: TarlsQtr | Aug 3, 2023 10:48:07 PM

TarlsQtr: I read it when it was issued. That decision concerns mail and wire fraud statutes which contain the "or for obtaining money and property" language that is absent from the 371 conspiracy offense.

Posted by: Reaslly? | Aug 4, 2023 8:04:03 AM

TarlsQtr: You say the election was rigged as to Donald Trump in 2020 but was not rigged as to Clinton. In each case, your preferred candidate won (or lost). So your definition of rigged appears contingent on your political preferences. At any rate, let me quote Harry Blackmun's DeShaney dissent: "Poor [Donald]!"

Posted by: Really? | Aug 4, 2023 8:08:44 AM

TarlsQtr: since you say Clinton should have been taken away in cuffs, surely you believe in the righteousness of the charges against DJT for refusing to return national defense information.

Posted by: Really? | Aug 4, 2023 8:09:59 AM

Really? You've got to be kidding. Clinton ran, in violation of the Federal Records Act, all her comms through her private server. That's way way more than Donald, Biden, Pence or anyone else did.

Posted by: federalist | Aug 4, 2023 9:20:14 AM

Really,

Of course, we both know that SCOTUS decisions can impact seemingly unrelated cases. For example, when the court defines “fraud:”

“the federal fraud statutes criminalize only schemes to deprive people of traditional property interests[.]”

“Preferred candidate?” I have never once voted for Trump in a primary or general election. Nor would I be heartbroken if he went to prison. A more accurate description of my position is him being put on the same cell block as Puddinhead Joe and the Medici of the Ozarks. It would make a great sitcom. The problem I have is with stretching the law beyond its limits, something Jack Smith is notorious for.

I have no issue with Trump going to prison for that as long as Justice is equally served. Joe goes too. Hillary goes too. As federalist stated, her crime was much worse and resulted in her server being accessed by foreign intelligence agencies.

Posted by: TarlsQtr | Aug 4, 2023 12:00:03 PM

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