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

by Michael Nguyen
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Prison time

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

Frequently Asked Questions (FAQs) about Prison time

How much prison time could Trump face if convicted?

The exact amount of prison time Trump could face is uncertain and would ultimately be determined by the trial judge. While the Espionage Act offense carries a maximum penalty of 10 years, first-time federal offenders rarely receive the maximum sentence. However, the presence of aggravating factors in Trump’s alleged conduct and other counts in the indictment, such as conspiracy to obstruct justice, could potentially increase the potential prison time to up to 20 years. It is important to note that logistical and political complications surrounding the incarceration of a former president may also come into play.

Have individuals who pleaded guilty to similar charges faced prison sentences?

Yes, individuals who have pleaded guilty to charges related to the retention of classified documents have, in some cases, received lengthy prison sentences. For example, Harold Martin, a former National Security Agency contractor who admitted to willfully retaining national defense information, received a nine-year prison sentence. Elizabeth Jo Shirley, another defendant who pleaded guilty to willful retention, received an eight-year prison sentence. However, each case is unique, and the final sentence depends on various factors, including the judge’s discretion and the specific circumstances of the case.

What are some potential defense strategies for Trump in this case?

Trump’s defense team may employ several strategies to challenge the charges. They could argue that he was entitled to possess the documents, claiming that he had the authority to declassify information and that the charges stem from prosecutorial overreach. They may also seek to exclude key evidence, such as notes from Trump’s lawyer, based on legal grounds. Additionally, the defense could attempt to convince the jury of “jury nullification,” suggesting that even if Trump violated the law, the violation was not serious enough to warrant charges or that he is being selectively targeted for prosecution.

What role does the trial judge play in determining the outcome?

The trial judge has a significant role in shaping the outcome of the case. In this instance, a Trump-appointed judge will preside over the trial. The judge’s decisions will impact various aspects, such as the timeline of the trial and the admissibility of evidence. However, it is essential to note that judges are expected to uphold the principles of impartiality and fairness in their rulings, irrespective of their political affiliations or the appointing authority.

Can Trump delay the legal proceedings?

As a defense strategy, Trump’s team could attempt to prolong the legal proceedings, aiming to delay the case. This tactic, often employed by Trump, can involve filing motions, challenging evidence, or seeking appeals, among other actions. The hope is that by extending the proceedings, Trump may be able to outlast the election cycle and potentially regain the presidency, thereby gaining control over the Justice Department and influencing the outcome of the trial. However, the success of such delay tactics would depend on various factors, including the court’s response and the strength of the prosecution’s case.

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