Trump is incredibly guilty: that doesn’t mean he’ll get the prison time he deserves

Forget headlines that the former president could face the rest of his life behind bars – prosecutors and the judge are likely to go easy on him for all the wrong reasons, writes Eric Lewis

Given the rules, it would be a travesty of justice for a non-custodial sentence to be imposed (Copyright 2021 The Associated Press. All rights reserved.)

In Mel Brooks’s The Producers, conman producer Max Bialystock is tried for financing the worst Broadway show ever, Springtime for Hitler. The foreman returns with the jury’s verdict: “We find the defendant ‘incredibly’ guilty.”

It is hard for any objective reader of the Trump indictment to see a reasonable jury deciding otherwise, as it appears that special counsel Jack Smith has virtually all of the necessary elements either on paper or on tape.

The suggested defences by the Trump team vetted to date don’t pass the laugh test, and Trump himself cannot possibly testify. If he did, it is hard to conceive of a defendant more likely to inculpate himself.

To be sure, many things can go wrong that will preclude conviction, as in any case. This includes the conveniently idiosyncratic legal reasoning of Aileen “Loose” Cannon, the Trump-appointed judge overseeing the case, and the possible exclusion of classified evidence.

There could also be delays to the trial until a potential Trump or Republican administration takes office and dismisses the charges or issues pardons, or the cult-like devotion of furtive Maga jurors leading to a hung jury.

Assuming, however, that some measure of rationality sneaks through the chaotic circus, Trump is likely to be found “incredibly guilty”. What would happen next? There are 37 counts, with maximum sentences on each ranging from five to 20 years.

The New York Post breathlessly fires up its readers with the report that he could face “400 years in prison”, which might be stretching things even for those of his supporters who believe he is immortal. This speculation only relates to the federal indictment on documents, and not to the charges in New York and potential charges related to January 6 and the attempt to reverse the election results in Georgia.

But the theoretical possibility of charges being cumulated, and maximum sentences imposed on every charge, is essentially zero, as that is not the way federal criminal sentencing works.

Judges are required to look at “the nature and circumstances of the offence” and the defendant’s characteristics as well as the seriousness of the crime, how similar cases have been treated, and how to best deter future criminal conduct. A judge is also required to consider the sentencing guidelines, meaning any sentence unduly harsh or lenient can be appealed.

Without delving into the arcana of the guidelines, any conviction about the retention or sharing of important national security information is very serious.

Other defendants who have kept hold of far less important information and done less with it have received heavy sentences. A great deal may depend on whether there is evidence that indicates Trump showed this information to people and compromised national security. Trump’s apparent attempt to obstruct an investigation should add points and therefore more prison time.

The sentencing guidelines would suggest that Trump, if convicted of multiple charges, should face between 17.5 and 22 years in prison. That indeed would be likely to be for the rest of his life. He might get some consideration given his age and his lack of any prior (adjudicated) crimes.

It is likely that he would be sentenced only for the most serious offence, with lesser offences served concurrently – but that would still lead to a sentence in double-digit years.

My prediction, however, is that despite the gravity of the offences, a judge won’t sentence Trump to anything approaching that length. I would expect prosecutors to recommend a sentence under five years, and the judge will strive to find some basis for no prison time.

Given the rules, it would be a travesty of justice for a non-custodial sentence to be imposed.

There can only be one reason to treat defendant Trump differently from other defendants, and it has nothing to do with a fair interpretation or application of the law.

Despite the gravity of the charges and the utter contempt Trump has shown for the law, prosecutors and the judge are likely to take a lenient approach for the one reason that should not receive any consideration: that he was the president (and could be again), and therefore should be treated differently from other offenders.