How much prison time could

Trump face? Past cases brought

steep punishment for document
hoarders
ERIC TUCKER and ALANNA DURKIN RICHER
Thu, June 15, 2023 at 11:14 PM GMT+7·6 min read
In this article:




Donald Trump
President of the United States from 2017 to 2021
 Aileen Cannon
American lawyer

WASHINGTON (AP) — The FBI investigators who searched Harold

Martin's Maryland property in the fall of 2016 found classified documents —
including material at the top secret level — strewn about his home, car and
storage shed.
Unlike former President Donald Trump, the former National Security
Agency contractor didn't contest the allegations, ultimately pleading guilty in
2019 and admitting his actions were “wrong, illegal and highly
questionable.” But his expressions of contrition and guilty plea to a single
count of willful retention of national defense information didn't spare him the
harsh punishment of nine years in prison.
The resolution of that case looms as an ominous guidepost for the legal
jeopardy Trump could face as he confronts 37 felony counts — 31 under
the same century-old Espionage Act statute used to prosecute Martin and
other defendants alleged to have illegally retained classified documents.
Even many like Martin who have pleaded guilty and accepted responsibility
have nonetheless been socked with yearslong prison sentences.
“When they decide to pursue a willful mishandling case, it’s to send a
message: that we take these cases very seriously,” said Michael Zweiback,
a defense lawyer and former Justice Department prosecutor. “They almost
always are seeking jail time.”
How much prison time the former president could face in the event of a
conviction is impossible to say, with such a decision ultimately up to the
trial judge — in this case, a Trump appointee who has already
demonstrated a willingness to rule in his favor. It’s also hard to know the
extent to which other factors — including the logistical and political
complications of jailing a former president — might play a role.
The Espionage Act offense is punishable by up to 10 years in prison,
though it's rare for first-time federal offenders to get close to the maximum.
But beyond the retention, prosecutors have also identified multiple
aggravating factors in Trump's alleged conduct, accusing him of seeking to
enlist others — including a lawyer and aides — to hide the records from
investigators and showing off some to visitors. Some of the other counts in
the indictment, including conspiracy to obstruct justice, call for up to 20
years in prison.
Justice Department prosecutors in recent years have used the Espionage
Act provision against a variety of defendants, including a West Virginia
woman who retained an NSA document related to a foreign government's
military and political issues. Elizabeth Jo Shirley pleaded guilty in 2020 to a
willful retention count and was sentenced to eight years in prison.
This month, a retired Air Force intelligence officer named Robert Birchum
was sentenced to three years in prison after pleading guilty to keeping
classified files at his home, his overseas officer’s quarters and a storage
pod in his driveway.
Many defendants have pleaded guilty, rather than face trial, though not all
have gone to prison. Trump — who also faces charges related to hush-
money payments in New York state court — has shown no signs that he
could be headed toward a plea deal, vigorously insisting he is innocent and
personally attacking Justice Department special counsel Jack Smith hours
after appearing in Miami federal court Tuesday.
Despite the details in the indictment, Trump does have some avenues to try
to contest the charges.
For one thing, he's drawn Judge Aileen Cannon, who sided with Trump last
year in the former president's bid to appoint a special master to conduct an
independent review of the seized classified documents. Citing the “stigma”
she said was associated with an FBI search of Trump's home, she said a
“future indictment” based on items that should've been returned to Trump
"would result in reputational harm of a decidedly different order of
magnitude.”
A three-judge panel of the U.S. Court of Appeals for the 11th
Circuit unanimously overturned her ruling, which was widely criticized by
legal experts as extraordinary and unusually broad.
Over the next several months, Cannon will make decisions that will shape
the trial, including how quickly it will happen and whether any evidence will
be kept out.
Prosecutors also face the challenge in Florida — where Republicans have
made steady inroads in recent years — of a jury pool likely to be more
favorable to Trump than if the case were tried in overwhelmingly
Democratic Washington, D.C.
Still, “I think that it might very well be that Jack Smith welcomes a Florida
jury because if there is a conviction, it will be much harder to say, ‘Well,
that jury was somehow anti-Trump,’" said Stephen Saltzburg, a George
Washington University law school professor and former Justice Department
official.
Experts anticipate Trump’s lawyers to echo the former president’s public
remarks in trying to get the case dismissed by arguing he was entitled to
have the documents and is the victim of prosecutorial overreach. Trump
could also try to block prosecutors from being able to use key evidence,
such as notes from his lawyer detailing conversations with the former
president.
If the case gets to trial, experts say Trump's attorneys may attempt what's
called “jury nullification” or try to convince jurors that he should be acquitted
even if they believe Trump broke the law because the violation wasn't
serious enough to warrant charges and he is being singled out.
"The theme of the defense can be riddled with suggestions of unfairness
and selective prosecution — basically trying to convince a jury that even if
the former president did what the government says he did, none of this
should have ever ended up in a criminal prosecution," said Robert Mintz, a
defense attorney and former Justice Department prosecutor.
Robert Kelner, a Washington criminal defense lawyer, said while an
outright acquittal seems unlikely given the volume of evidence, a pathway
for a mistrial exists if Trump attorneys can persuade even one juror to
acquit on grounds that the president enjoyed the absolute authority to
declassify information.
That authority ended the moment Trump left the presidency, but even so,
“some jurors will likely find it hard to rationalize convicting him for
something that he previously had the absolute authority (to do) simply
because he didn’t file the right forms and do it at the right time,” Kelner
said.
In the end, facing a mountain of evidence and the prospect of years in
prison, Trump's best hope may be a tactic he often pursues: Delay, delay,
delay, said Cheryl Bader, a former federal prosecutor and head of Fordham
University Law School's Criminal Defense Clinic.
“His best defense may be to try to ride out the election cycle, be elected as
president and therefore be in charge of the Justice Department before the
case goes to trial," she said.