If you scroll down to the bottom of Donald Trump’s federal indictment, you’ll see maximum possible prison sentences totaling triple digits. That’s not going to happen. Still, the former president who will soon be 77, could spend the rest of his life behind bars if convicted at trial of stashing state secrets and covering it up.
Trump is charged with 37 counts, including 31 counts of violating the Espionage Act listing 10-year maximums, several obstruction and concealment charges listing 20-year maximums, and scheme to conceal and false statements charges listing five-year maximums.
We’re talking about someone who’s pushing 80. Any sentence would be serious.
But those numbers aren’t too useful to understanding what Trump actually faces if he’s sentenced. Rather, the judge would be informed by factors listed in federal law including, among other things, providing just punishment and protecting the public. Crucially, instead of just adding up the statutory penalties noted above, federal judges refer to the sentencing guidelines, a formula with several considerations that assign “points,” including for things such as whether the defendant had a leadership role in the crime.
The guidelines aren’t binding on judges but they serve as a starting point for what a sentence may be. How much time people got in similar cases is relevant too, which could be bad for Trump, to the extent that his conduct is more severe than other cases that have garnered prison time.
As an example of how the guidelines could be calculated here, David Aaron at Just Security noted that a conviction related to top secret documents, combined with points for a leadership role, abuse of trust, and obstruction could translate to a term between about 17½ and 22 years, with sentences on other convictions in the indictment potentially running concurrently to that term.
So while judges may depart from these guidelines, it’s entirely conceivable that Trump could receive a double-digit term if convicted, though the precise number will depend partly on factors that become clearer closer to any sentencing. Pleading guilty can result in a lower sentence than he’d get if convicted at trial, but don’t expect a plea if he’d otherwise face trial before the 2024 election, in which case a Republican victory could scuttle the prosecution.
Keep in mind: Judges have discretion, so if Aileen Cannon, who previously stretched the law to rule for Trump, stays on the case, that could be a practical factor in his favor if he finds himself seeking mercy. And remember, we’re talking about someone who’s pushing 80. Any sentence would be serious. And the number might not make much practical difference if Trump or another Republican is elected and pardons him or otherwise upends any federal prosecution against him. (As I’ve noted previously, presidents can’t pardon state crimes.) But if you see anyone talking about Trump facing hundreds of years in prison (not that he could serve them), you can safely ignore such analyses. And if Trump is convicted and sentenced to prison time, he might not begin serving his sentence for years, due to any trial delays followed by appeals. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump investigations and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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