Potential Prison Time for Trump: Comparing Past Cases of Document Hoarders

In 2016, FBI investigators discovered classified documents, some at the top-secret level, scattered throughout Harold Martin’s property in Maryland. Unlike former President Donald Trump, who now faces 37 felony counts, Martin did not contest the allegations. Instead, he pleaded guilty in 2019, acknowledging the wrongfulness, illegality, and questionable nature of his actions. However, Martin’s expressions of contrition and his guilty plea for willfully retaining national defense information did not spare him from a severe sentence of nine years in prison.

This outcome serves as a foreboding precedent for the potential legal consequences that Trump could face. The charges against him include 31 counts under the century-old Espionage Act, the same statute used to prosecute Martin and others who unlawfully retained classified documents. Even individuals like Martin, who pleaded guilty and accepted responsibility, were met with lengthy prison terms.

The exact duration of prison time Trump might face, if convicted, is difficult to predict. The trial judge, in this case, is a Trump appointee who has previously demonstrated a willingness to rule in his favor. Additionally, logistical and political complexities surrounding the incarceration of a former president may also influence the final decision.

Under the Espionage Act, the offense is punishable by up to 10 years in prison, although first-time federal offenders rarely receive the maximum penalty. However, prosecutors have identified several aggravating factors in Trump’s alleged conduct, including attempts to involve others, such as a lawyer and aides, in concealing records from investigators and displaying some documents to visitors. Certain counts in the indictment, such as conspiracy to obstruct justice, carry a potential sentence of up to 20 years in prison.

In recent years, the Justice Department has utilized the Espionage Act against various defendants. For instance, Elizabeth Jo Shirley, a West Virginia woman, received an eight-year prison sentence in 2020 after pleading guilty to willfully retaining an NSA document pertaining to a foreign government’s military and political affairs. Similarly, Robert Birchum, a retired Air Force intelligence officer, was sentenced to three years in prison after confessing to keeping classified files at multiple locations.

While many defendants have chosen to plead guilty to avoid trial, not all of them have been incarcerated. Trump, who also faces charges related to hush-money payments in New York state court, has shown no indications of heading toward a plea deal. He vehemently maintains his innocence and has launched personal attacks against Justice Department special counsel Jack Smith shortly after appearing in a Miami federal court.

Despite the details presented in the indictment, Trump possesses certain avenues to challenge the charges. For instance, he has been assigned Judge Aileen Cannon, who ruled in favor of Trump in a previous case involving the appointment of a special master to review seized classified documents. Cannon argued that the FBI search of Trump’s home was associated with a significant “stigma” and suggested that any future indictment based on items that should have been returned to Trump would cause reputational harm. However, her ruling was unanimously overturned by a three-judge panel from the U.S. Court of Appeals for the 11th Circuit, which legal experts widely criticized as extraordinary and excessively broad.

Over the coming months, Judge Cannon will make crucial decisions that will shape the trial, including the timeline and admissibility of evidence. Prosecutors also face the challenge of selecting a jury in Florida, where Republicans have gained traction in recent years. Consequently, the jury pool may be more favorable to Trump compared to an overwhelmingly Democratic environment in Washington, D.C.

Nonetheless, legal experts believe that Justice Department special counsel Jack Smith may welcome a Florida jury, as it would make it harder to claim bias if there is a conviction. Trump’s defense team is expected to adopt a strategy that aligns with the former president’s public remarks, seeking dismissal of the case by arguing that he was entitled to possess the documents and that the charges result from prosecutorial overreach. Trump might also attempt to prevent the use of key evidence, such as his lawyer’s notes documenting conversations with him.

If the case proceeds to trial, Trump’s attorneys may employ the strategy of “jury nullification,” aiming to convince jurors to acquit him even if they believe he violated the law. They may argue that the violation was not serious enough to warrant charges and that Trump is being unfairly targeted.

“The defense may highlight the theme of unfairness and selective prosecution, attempting to persuade the jury that even if the former president committed the acts as alleged, none of it should have led to a criminal prosecution,” explains Robert Mintz, a defense attorney and former Justice Department prosecutor.

Robert Kelner, a criminal defense lawyer in Washington, suggests that while an outright acquittal seems unlikely given the substantial evidence, Trump’s defense could pursue a mistrial if they manage to convince even one juror that the president possessed absolute authority to declassify information.

It’s worth noting that this authority ceased when Trump left office. Nevertheless, Kelner believes that some jurors might struggle to convict Trump for an act he had the power to do simply because he didn’t follow the correct procedures or timing.

In the end, facing overwhelming evidence and the possibility of a lengthy prison sentence, Trump’s best strategy might be to employ his well-known tactic of delay. Cheryl Bader, a former federal prosecutor and head of Fordham University Law School’s Criminal Defense Clinic, suggests that Trump’s defense team may try to prolong the legal proceedings, hoping to outlast the election cycle and secure his re-election as president, thereby gaining control over the Justice Department before the trial commences.

Reporting from Boston by Alanna Durkin Richer

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More about Prison time

• Espionage Act of 1917
• Harold Martin’s case: NSA contractor sentenced
• Elizabeth Jo Shirley’s case: West Virginia woman sentenced
• Trump’s legal challenges and defense strategies
• Role of the trial judge in Trump’s case
• Delay tactics in legal proceedings