Now that the public has seen the current list of federal charges against former President Donald Trump, there is a long road ahead. If the defendant is ultimately convicted, that road will lead to sentencing. The Espionage Act charges the defendant faces carry a maximum prison sentence of ten years.  The Tampering (and related Conspiracy) and Concealment charges each carry a maximum prison sentence of twenty years.  The Scheme to Conceal and False Statements  charges each carry a maximum prison sentence of 5 years.  Of course, in any criminal case, numerous factors affect the sentence, and focusing on the statutory maximums can be misleading. Federal law, specifically 18 U.S.C. § 3553, directs courts to impose a sentence based on a list of considerations. The U.S. Sentencing Commission issues Sentencing Guidelines to assist courts and promote consistent application of criminal law. Sentencing trends in similar cases can provide reference points, but only if similar cases exist. This quick note gives an idea of how a sentence would be calculated, with the caveat that issues such as sentencing on multiple counts of conviction, related conduct, and new factual developments could arise.

General Framework

Section 3553 directs courts to examine “the nature and circumstances of the offense” and the defendant’s characteristics. It also requires courts to consider the purposes of criminal sentences, specifically the need to:

  • Impose a sentence consistent with the seriousness of the offense
  • Promote respect for the law 
  • Provide just punishment
  • Deter future criminal conduct
  • Protect the public from the defendant’s potential future criminal conduct
  • Provide rehabilitation in the form of training, medical care, and other treatment
  • Avoid undue disparities among similarly situated defendants who engaged in similar conduct

The statute also mandates application of the Sentencing Guidelines. The Guidelines are advisory, not mandatory, but the Supreme Court has held that a sentencing judge “must give serious consideration to the extent of any departure from the Guidelines” and must explain her reasoning if she imposes an unusually lenient or harsh sentence.

The Guidelines themselves set out general principles, then list specific base offense levels for specific crimes. They provide adjustments based on factors related to victims, a defendant’s role in the offense, any obstruction or related conduct, the treatment of multiple counts, and a defendant’s acceptance of responsibility. Each of these factors adds or subtracts a specified number of points. The total value can then be compared to a chart that provides sentencing ranges based on a defendant’s criminal history.

Application to the Special Counsel’s Charges

The base level for willfully retaining national defense information in violation of 18 U.S.C. § 793(e) is 24 — but increases to 29 if the information at issue was classified Top Secret, as alleged in the Trump indictment (§2M3.3). A defendant’s leadership role in a crime could add 4 points if the defendant was an “organizer or leader” of criminal conduct that involved at least five people or was “otherwise extensive” (for example, conduct that relied on the assistance of unwitting outsiders), or 2 points if the defendant organized or led criminal activity that involved fewer people and was not as extensive (§3B1.1).  The Indictment alleges the defendant was the organizer or leader of criminal conduct that involved at least five other people, whether or not all were witting (Waltine Nauta, Employee 2, and Attorneys 1-3), so the defendant’s attorneys will consider calculations based on the 4-point increase.  Conversely, point deductions are available if a defendant had a minimal or minor role (§3B1.2).  

The Guidelines add 2 points for a defendant’s abuse of public or private trust to commit the crime (§3B1.3).  Courts routinely add those extra points in Section 793(e) cases because the defendant usually came into possession of national defense information while in a position of public trust, and indeed by virtue of that position.  Two additional points are added for a defendant’s willful obstruction of the investigation, prosecution, or sentencing of the offense at issue (§3C1.1). (The obstruction points are not applied to violations of statutes that themselves prohibit obstruction except in certain circumstances.) 

A defendant’s acceptance of responsibility, such as by pleading guilty, provides a 2-point reduction in offense level. An additional 1-point reduction is available at the prosecutor’s discretion (if applied, the court would also need to approve the basis for the reduction following a motion from the government).

For an individual count of 18 U.S.C. § 793(e), then, a potential offense level could consist of:

Base level with Top Secret: 29
Leadership role: 4
Abuse of trust: 2
Obstruction: 2
Total: 37

For a defendant with no prior criminal convictions, an offense level of 37 yields 210 to 262 months (17 1/2 to almost 22 years). A defendant who accepted responsibility could reduce that range to 151 to 188 months if the prosecution agreed to deduct the third point.

The base levels for the other charges in the Indictment are lower.  Section 2J1.2 applies to “obstruction of justice” charges such as the Tampering and related Conspiracy counts, the Concealment count, and the Scheme to Conceal and False Statements counts. The base level for these crimes begins at 14, but that increases to 17 if the offense “resulted in substantial interference with the administration of justice.” The base further increases to 19 if the court finds that the offense was extensive or involved “any essential or especially probative record,” which the allegations in the Indictment, if proved, would likely support. To account for obstruction of investigations of particularly serious crimes, however, the Guidelines direct the court to apply Section 2X3.1 instead of 2J1.2 if, as alleged in the Indictment, the offense involved obstructing a criminal investigation and Section 2X3.1 would yield a higher offense level. Section 2X3.1 provides a base level of 6 below the underlying offense, which in a Section 793(e) investigation involving Top Secret documents would result in a level of 23.  The “leadership role” and “abuse of trust” increases would still apply, but the obstruction increase does not apply to sentences calculated based on Sections 2J1.2 or 2X3.1.  As a result, for a conviction of one of these counts, a potential offense level could consist of the following (I’ve included alternate calculations based on 2J1.2 to illustrate the difference in guidelines)…

Base level using 2X3.1: 23 (or 19, as alleged, under 2J1.2)
Leadership role: 4
Abuse of trust: 2
Total: 29 (or 25)

For a defendant with no prior criminal convictions, an offense level of 29 yields 87 to 108 months (7 1/4 to 9 years) and an offense level of 25 yields 57 to 71 months (4 3/4 to almost 6 years). A defendant who accepted responsibility could reduce those ranges to either 63 to 78 months or 41 to 51 months if the prosecution agreed to deduct the third point.

The question of whether sentences would run concurrently or consecutively has come up.  The answer will depend on a variety of factors, not least of which include the evidence at trial, the count or counts of conviction, and “grouping” under Section 3D1.2.  Section 5G1.2, which addresses sentencing on multiple counts, provides that if the sentence imposed on the count with the highest statutory maximum is sufficient to implement the total punishment, then the sentences on multiple counts will run concurrently.  But if the sentence on the count with the highest statutory maximum is insufficient, the court can run sentences consecutively to achieve the target sentence.

It is important to reiterate, however, that the Guidelines are advisory and that Section 3553 directs courts to impose sentences that are consistent with other cases that involve defendants who committed similar crimes under similar circumstances. Identifying those cases in any Section 793(e) retention case is a challenge because of the sparsity of cases and the unique factors that each case involves. If the former President is convicted of one or more counts of Section 793(e), both sides will present examples of prior retention and disclosure sentences and reason by analogy, but United States v. Donald J. Trump is an unprecedented case for a variety of reasons that could be relevant to sentencing.

IMAGE: A judge’s gavel and the American flag. (via Getty Images)