Friday, June 16, 2023

How long might Donald Trump spend behind bars?

 When FBI agents searched Harold Martin's Maryland property in the fall of 2016, they discovered a plethora of classified documents, including top-secret material, all over his house, car, and storage shed.

The former contractor for the National Security Agency, in contrast to former President Donald Trump, did not dispute the allegations and, in the end, pleaded guilty in 2019 and acknowledged that his actions were "wrong, illegal, and highly questionable." However, despite his expressions of regret and his guilty plea to the single charge of willful retention of national defense information, he was still sentenced to nine years in prison.

Trump is facing 37 felony counts, including 31 under the same century-old Espionage Act statute that was used to prosecute Martin and other defendants alleged to have illegally retained classified documents. The outcome of that case looms as an ominous guidepost for the legal peril Trump could face. Even those who have pleaded guilty and accepted responsibility, like Martin, have received lengthy prison sentences.

"The reason they choose to pursue a willful mishandling case is to convey the following: that we take these cases very seriously," said defense attorney and former Justice Department prosecutor Michael Zweiback. They almost always want to go to prison."

It is impossible to predict the amount of time the former president would serve in prison if convicted, as that is ultimately up to the trial judge, in this case a Trump appointee who has already shown a willingness to rule in his favor. It's also hard to tell how much other things might play a part, like the political and logistical difficulties of imprisoning a former president.

Although it is uncommon for first-time federal offenders to reach the maximum sentence for the Espionage Act offense, it is possible. However, in addition to the retention, prosecutors have also identified a number of aggravating factors in Trump's alleged behavior. They say that Trump tried to get others, like a lawyer and aides, to hide the records from investigators and show some to visitors. The indictment also includes conspiracy to obstruct justice, which carries a maximum sentence of 20 years in prison.

In recent years, prosecutors at the Justice Department have used the Espionage Act provision against a number of defendants, including a woman from West Virginia who kept an NSA document about the military and political issues of a foreign government. In 2020, Elizabeth Jo Shirley entered a guilty plea to a charge of willful retention and received an eight-year prison term.

Robert Birchum, a retired intelligence officer in the Air Force, pleaded guilty to storing classified documents in his driveway storage pod, overseas officer quarters, and home earlier this month.

While not all of the defendants have been sentenced, many have entered guilty pleas rather than going to trial. Trump, who also faces charges in New York state court for making hush-money payments, hasn't shown any signs of agreeing to a plea deal. Just hours after appearing in Miami federal court on Tuesday, he personally attacked Justice Department special counsel Jack Smith and insists that he is innocent.

Trump does have some options for attempting to challenge the charges, despite the specifics in the indictment.

For one thing, he has drawn Judge Aileen Cannon, who sided with Trump last year when he tried to appoint a special master to review the seized classified documents independently. She stated that a "future indictment" based on items that should have been returned to Trump "would result in reputational harm of a decidedly different order of magnitude," citing the "stigma" she claimed was associated with an FBI search of Trump's home.

Her decision, which was widely criticized by legal experts as extraordinary and unusually broad, was unanimously overturned by a panel of three judges from the United States Court of Appeals for the 11th Circuit.

Cannon will make decisions that will shape the trial over the next few months, like how quickly it will happen and whether any evidence will be kept out.

Additionally, the jury pool in Florida, where Republicans have made steady inroads in recent years, is likely to be more favorable to Trump than in overwhelmingly Democratic Washington, DC. This presents a challenge for the prosecution.

Stephen Saltzburg, a former Justice Department official and professor at George Washington University, stated, "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.'"

Experts anticipate that Trump's lawyers will attempt to dismiss the case by arguing that he was entitled to the documents and is the victim of prosecutorial overreach, echoing the former president's public statements. Trump could likewise attempt to hinder investigators from having the option to utilize key proof, for example, notes from his legal counselor itemizing discussions with the previous president.

Experts say that if the case goes to trial, Trump's lawyers may try to "jury nullify," or convince jurors that he should be acquitted even if they think he broke the law because the violation wasn't serious enough to warrant charges and he is being singled out, which is called "jury nullification."

Robert Mintz, a defense attorney and former Justice Department prosecutor, stated, "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."

Even though an outright acquittal seems unlikely given the amount of evidence, Washington criminal defense attorney Robert Kelner said there is a chance of a mistrial if Trump attorneys can convince even one juror to acquit on the grounds that the president had complete authority to declassify information.

However, "some jurors will likely find it difficult 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 stated, "that authority ended the moment Trump left the presidency."

With a mountain of evidence and the possibility of years in prison, Trump's only hope may be a strategy he frequently employs: Cheryl Bader, the former head of the Criminal Defense Clinic at Fordham University Law School and former federal prosecutor, stated, "Delay, delay, delay."

She stated, "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." This would be his best chance of winning the election.

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