In both state and federal courts, judges have wide latitude in sentencing. None of the crimes Trump has been charged with carry a mandatory minimum sentence, and defendants with no prior criminal record — a status that, at least for now, applies to Trump — rarely receive the maximum. And if the 77-year-old former president were convicted of multiple counts within the same case, any sentences for those counts might run simultaneously, rather than being stacked on top of each other.
More broadly, sending Trump to prison could raise unprecedented practical and legal issues that would be on any judge’s mind. For one thing, there is the extraordinary logistical challenge of jailing a former president who is entitled to around-the-clock Secret Service protection. For another, there is the potential constitutional crisis that could ensue if Trump were reelected to the White House in 2024 and then ordered by a judge to serve out a prison term.
Those concerns aside, some of the felonies Trump is accused of — particularly in the two federal cases brought by special counsel Jack Smith — routinely entail significant sentences. Legal experts anticipate that Smith’s team, if they obtain convictions against Trump, will seek substantial prison time in both cases they have brought, one involving his retention of classified documents and the other involving his bid to overturn the 2020 election.
Trump himself has even touted the threat of a significant prison sentence in recent fundraising emails, with his campaign and a PAC saying in late July, “While my primary opponents continue to take cheap swipes at me as the Department of Justice plots ways to throw me in JAIL for up to 561 YEARS, I am asking YOU to stand with me at this pivotal moment in the election.”
The charges that might carry the most severe penalties for Trump involve obstruction of justice. In both federal cases, Smith has accused him of violating various provisions of the federal statutes that prohibit obstructing official proceedings or obstructing investigations. All of the obstruction charges — which include allegedly impeding the government’s attempts to retrieve the classified documents and disrupting the Jan. 6, 2021, session of Congress — have a 20-year maximum sentence.
While Trump’s lack of a criminal record could weigh in favor of a sentence much lower than that, prosecutors might argue that so-called aggravating factors — like Trump’s alleged efforts, in both cases, to pressure others to commit crimes — support a stiffer term.
Trump’s willingness, or lack thereof, to accept responsibility if convicted also would play a role in a judge’s sentence.
The core charges in the classified documents case — 32 counts of willful retention of national defense information in violation of the Espionage Act — also routinely entail significant sentences for people found guilty. Earlier this year, a former Air Force intelligence officer was sentenced to three years for retaining various classified documents. In 2021, a West Virginia woman was sentenced to eight years for retaining a single National Security Agency record.
Additional charges in the election-interference case — alleging a conspiracy to defraud the United States and a conspiracy to deprive people of the right to vote — are less common in this context, so a potential sentence is more difficult to predict.
The case that appears least likely to put Trump away is the prosecution by the Manhattan district attorney’s office, which charged Trump with falsifying business records in connection with a hush money payment to cover up an alleged affair with a porn star.
In that case, Trump is charged with 34 felony counts under New York law, and each count carries a maximum sentence of four years. But legal experts say judges seldom sentence first-time offenders to any prison time for that crime.
Trump is set to be arraigned in the election case on Thursday in Washington, D.C. He has pleaded not guilty in the other two cases.