Imagine it’s late-September, 2024. Donald Trump, the recently-nominated Republican candidate for President of the United States, has just been found guilty by a Washington, D.C. jury on three of the four felony counts of the indictment related to the January 6^th insurrection (the jury acquitted him on one of the two obstruction counts). The election is only five weeks away.

The First Item of Business- Release Pending Sentencing

Judge Chutkan thanks and dismisses the jurors, and they leave the courthouse through a secure passage under heavy guard. She brings the court back to order and announces, “The court will now hear from counsel on Defendant Trump’s status pending sentencing. What says the government.”

Jack Smith stands. “Your honor, because the Defendant is in the unique position of running for president, we have no objection to his continued release on recognizance subject to your order of October 16, 2023, limiting speech, but now with a caveat that if he makes even one comment in violation of your order, the government will ask for home detention with electronic monitoring until sentencing. Up until now, the court has been very deferential with the defendant while he was cloaked with the presumption of innocence and running for high office. That presumption is gone. He is now a convicted felon and no longer deserves that deference, even though he is still running for president.”

Defense attorney John Lauro rises. “Release on recognizance is the only fair option. We re-iterate our objection to your pre-trial order limiting speech. We maintain that it is unconstitutional despite it being upheld by the Supreme Court.”

Judge Chutkan ignores Lauro’s attempt to please his client and addresses Trump directly. “As a free man running for president, Mr. Trump, you waged a misinformation campaign in an effort to intimidate this court, the prosecution, its witnesses, and the jury. The court cut you some slack on sanctions because of the unique position you were in. But you are now a convicted felon and you have fewer rights and privileges than you had only fifteen minutes ago. You will be allowed to remain free on your own recognizance with the warning that from here on out there will be zero tolerance of any violation of my order. Sentencing is set for January 5, 2025.”

The Pre-Sentencing Process

Three weeks later, just two weeks before the election, Judge Chutkan returns to her chambers after a long session in her courtroom to find a report on her desk from the United States Sentencing Commission. The cover reads “In the Matter of The United States of America v. Donald John Trump.” From experience, she knows that, based on the severity of the crimes for which Trump was found guilty, the commission’s scoresheet will be recommending a prison sentence. Leafing through the report she is reminded that, since January 20, 2017, millions of Americans have been forced to endure Trump’s ignorance and incompetence while in office, have suffered his firehose of lies about a stolen 2020 election, and have witnessed his threats to democracy culminating in a failed, violent coup attempt on January 6, 2021. Now they want to see Trump do some serious time for his crimes. And so, the big question is whether these millions of anxious Americans will approve of the sentence she must now craft, a decision which is hers and hers alone. She can’t rule from her gut. There are many factors to consider. The first consideration is the recommended sentence contained in the report.

Sentencing guidelines are a set of non-binding rules and tables established by the United States Sentencing Commission to provide a uniform, nationwide sentencing policy. Federal judges, in the spirit of equal fairness, generally rely upon them. If a prison sentence is determined, it will be spelled out by giving a range of months, not years, within which the commission is recommending an appropriate term in prison. The judge will also consider aggravating and mitigating circumstances and impose a sentence either somewhere within the recommended range or she may go outside that range with a higher or lower sentence. When going outside the guidelines, the judge will state her reasons which justify the deviation.

Despite pre-trial news reports that Trump was facing 75 years in prison, that was never going to happen. If all his sentences ran concurrently, he’s looking at a 20-year maximum, and even that’s not going to happen. For purposes of this hypothetical, let’s assume the low end of the recommended range is 41 months, and the high end is 78 months.[1] Whatever sentence is imposed, all federal prisoners must serve at least 85% of their prison sentence before becoming eligible for parole[2] or outright release.

Judge Chutkan could sentence Trump to a period of years on probation without him ever having to serve any time in prison. She had already decided that, unless circumstances significantly change between now and sentencing, such as Trump having a severe, debilitating stroke, probation would be going way too easy on him. In addition to a term in prison, she could place him on supervised release, under probationary-type conditions,[3] for a period of years following his release. She likes that option better than an outright release after he serves his time. Yet she knows it’s too early in the process to settle on any one of her three options. One thing is for sure – he will be fined and ordered to make any restitution.

Sipping her tea, Judge Chutkan relaxes in her ergonomically designed chair and ponders mitigating and aggravating circumstances, suddenly chuckling to herself when she realizes Trump will actually have mitigating circumstances. Offhand she can easily think of two: his age and having no prior criminal convictions. Prison can rapidly wear down a person physically, especially elderly convicts who are already subject to declining health and with only a short life expectancy ahead. It also affects them mentally, especially those prisoners who, over a long lifetime, have never experienced the drastic, traumatic change of lifestyle brought about by incarceration. Prison for Trump would no doubt be a steep fall from grace and a radical change of environment which could really take its toll on both his physical and mental health. Notwithstanding the wish of many that Trump die in prison, Judge Chutkan ponders the historical impact and possibly negative optics of sending a former president to prison for a term of years that could foreseeably turn out to be a life sentence. Vengeance is not mine, she says to herself.

At the time of sentencing in January, 2025, Trump will be 78 years, six months old with a remaining life expectancy of about 9½ years. A 10-year sentence could amount to a life sentence, but there’s always the prospect of compassionate parole or commutation of sentence should his health falter. If he, as he claims today, is in good health at the time of sentencing, then his age and health would certainly not disqualify him from going to prison, but they could affect how long his incarceration should last.[4]

The second mitigating factor is the absence of any criminal record. (Note: I do not have access to the National Crime Information Center’s data base, but Google tells me this is his first conviction.) Although three more felony cases are pending, this case, being the first, he will have a clean record working in his favor.

Unable to think of any other mitigating circumstances, Judge Chutkan moves on to aggravating circumstances. She’s ready to counterbalance Trump’s clean criminal record with his long history of unethical, immoral, tortious and unpunished criminal conduct. Trump is a proven malignant narcissist with both a record and reputation for sexual indecency with women, cheating in business, defrauding lenders and consumers, threatening democracy and grifting gullible donors with his lies. There’s no doubt in her mind that Donald Trump did not first evince a criminal mind when he lost the presidency to Joe Biden in 2020. It’s just the most recent incident in a lifetime filled with unscrupulous behavior.[5]

Moving on to victim impact, the judge believes Trump created two categories of victims. First, the people he directly harmed; second, the unprecedented, uncountable number of democracy-loving Americans to whom he caused emotional distress on many levels. America’s political and government institutions, though not human, could also be considered victims of his assault on the Constitution. All deserve to be heard and considered at sentencing, especially the first group.

If Trump loses this election, Judge Chutkan reasons, he will probably never hold a political office again.[6] He will never again be, as he is now, the greatest danger to liberal democracy in American history. With virtually no future life in politics, he can’t commit most, if not all, of the crimes for which he is currently indicted. However, his obsession with being a rich, famous, and powerful winner will live on, making him capable of a lot more political mischief, such as cultivating and expanding his base, inciting his cult followers to hinder the campaigns of anti-MAGA candidates through any number of unlawful and unethical means, and fraudulently raising SuperPAC money. Clenching her fists, she pledges that just cannot and will not happen again – not if she has anything to say about it.

Judge Chutkan then wonders if Trump will express remorse at sentencing. She’s sure his lawyers have advised him that sincere expressions of remorse can shave months off a sentence, and that contemptuous, hollow claims of innocence might add on a few more months. His lawyers must be terrified about the possibility of Trump giving a speech in open court. If past is prologue, while trying to speak his prepared comments, a switch in Trump’s brain might flip, sending him off into a spontaneous diatribe filled with self-serving lies, insults, and protests, thus digging himself into a deeper hole. She hopes Trump controls himself because she doesn’t want to deal with contempt of court issues at sentencing.

Having considered all the above, Judge Chutkan is convinced that probation alone is out of the question. Pouring a second cup of tea, she asks herself, what do I want Mr. Trump and the public at large to know about why I am sentencing him to prison? Stirring her tea, she now considers which of the four purposes for sentencing someone to prison will be achieved in Donald Trump’s case.

Deterrence. Often referred to as “sending a message,” that is, a warning to others of what they can expect if they do the same thing, deterrence is supposed to serve as a reminder to think twice before doing something impulsive or stupid. The problem is, most crimes are committed by perpetrators who are either brain-addled, desperate, or in the throes of heated passion, and they are certainly not doing a risk-benefit analysis as they ponder whether or not to proceed with their crimes. In this case, however, the threat of prison would be an effective warning to people, especially high-ranking politicians, not to attempt to overthrow the federal government, unlawfully change the outcome of free and fair elections, or prevent the peaceful transfer of power.

I want everyone to know that the United States of America is making it impossible for him to run for or hold public office while under government supervision, which ought to be long enough that, upon   completion of his sentence, he will be too old to ever be taken seriously. I would reinforce the fundamental principle that no one, not even a former president, is above the law. Finally, I want to discourage all future Trump wannabes and copycats from pulling off a stunt like this again.

 

Retribution. Also known as “paying one’s debt to society,” or “getting one’s pound of flesh,” retribution is punishment intended to offer emotional comfort and closure to victims or the victim’s survivors.

Trump deserves to be punished for what he did to the entire nation in general, and specifically to the U.S. Capitol Police, and those lawfully inside the Capitol building that afternoon. I want to offer some sense of relief, comfort and closure to all who suffered, both directly or indirectly, from the violence he incited and the anxiety he caused when he threatened liberal democracy and tried to undermine the Constitution. He also deserves punishment for his egregious abuse of power while holding an office which imposed upon him a sacred duty to do just the opposite. Finally, I want to deny him the limelight he craves, which to him, is probably the stiffest punishment of all.

 

Separation/Incapacitation. This factor applies mostly to keep career violent criminals off the streets. It’s sometimes referred to as “warehousing.” In Trump’s case, any prison sentence should effectively end his career in presidential politics, but incarceration would put a much-desired pause on his ability to make other serious mischief to American democracy.

The free world would certainly benefit from an extended vacation from Donald Trump. Only prison can do that. If he were on probation, he could still test his limitations and remain in the news. It will be much harder to find a soapbox while in prison.

 

Rehabilitation. Prison rehab services work in some cases, but recidivism remains high for prisoners after they are released. Unfortunately, even rehabilitated prisoners sometimes recidivate. No one should ever go to prison for the sole purpose of attempting to rehabilitate.

Nothing, I believe, including prison rehab services, will change Trump.[7]

 

Two more questions come to Judge Chutkan’s mind that should get some mention at sentencing. The public might be wondering where Trump will serve his sentence. Judges do not decide in which prison a convict will be incarcerated, but they can make a non-binding recommendation.

I’m 99 & 44/100 % sure Trump will go to a minimum-security prison, probably one of the “Club Feds.”[8] If the public is hoping he will do his time in a high-walled, razor-wired facility like Shawshank, and sweating in a prison laundry or making license plates, they can forget it. Given his age, his biggest stress will be boredom (unless he decides to start reading books).

And what about the Secret Service? Trump’s Secret Service protection detail will have to be in the prison with him, but at least they will be able to leave it at the end of their shift. The Secret Service cannot delegate Trump’s personal safety to the corrections officers. Moreover, there may be heightened concern for his safety while living within a prison population, which could possibly increase the size of his detail.

The burdens on the Secret Service should not prevent him from getting the justice he deserves.

 

The Sentencing Hearing

(It’s now January 5, 2025, and Trump lost his bid for re-election)[9]

At the sentencing hearing, Judge Chutkan will first hear from victims, other witnesses testifying for aggravation or mitigation of his sentence,[10]  the lawyers, and, if he so chooses, the defendant himself. Since Trump’s victims technically number in the millions, the Special Prosecutor will speak for them. Capitol police officers, survivors of deceased Capitol police officers, and the people inside the Capitol, including Mike Pence, would be given an opportunity to appear and give a live victim impact statement or submit one in writing to be read in open court. The sentencing guidelines report will be on her bench. Counsel will make speeches in support of, or in opposition to, the sentencing recommendation.

Sentencing hearings provide judges their first and best opportunity to comment on the trial, the evidence, the verdict, the victim impact, and all other pre-sentence information. Now that Trump has been convicted, Judge Chutkan can express some opinions of her own which heretofore would have been inappropriate for her to express. She surely will adhere to the high standards of judicial conduct in giving such an address. Unfortunately, some judges use sentencing as an opportunity to rail against the defendant, sometimes with vicious ad hominem attacks.[11] It is proper for judges to condemn bad actions because that is the purpose of our law courts. That said, it is not the judge’s prerogative to viciously opine upon the defendant’s character, ethics or morality. It’s okay to say, “What you did was evil,” but not, “You are evil.” The former maintains the stature of the court as a place where truth abides; [12] the latter reduces the judge to a common name-caller.

The Sentence

“Donald John Trump, the jury has found you guilty of Conspiracy to Defraud the United States by attempting to overturn the results of the 2020 presidential election; also guilty on one count of Obstruction of a Governmental Proceeding, to wit: the vote certification proceedings at the Capitol on January 6, 2021; and, finally, guilty of Conspiracy to Violate Civil Rights. The court has previously adjudicated you guilty of the same.

“The court has read and considered the sentencing briefs of counsel; I have reviewed the sentencing guidelines report and I find it to be correctly calculated; I have heard from the witnesses, both for and against you, either live or through written victim impact statements; I listened to your statement; and I have heard the arguments of counsel.

“In 2016, you were duly elected the 45^th President of the United States. Despite losing the popular vote, you won a majority of electoral votes. On January 20, 2017, there was a peaceful transfer of power from a Democratic administration to your Republican administration, as has always happened throughout our nation’s history. Some previous transfers of power were made grudgingly, but always peacefully.

“When the 2020 presidential election season got underway, you began spreading misinformation that if you lost the election, then the election had to have been rigged, thus putting your faithful supporters on notice that trouble might be lying ahead, and to be prepared. When the election was finally called for Joe Biden, you began your stolen election campaign, even though there was insufficient credible evidence to make the claim. In the ensuing weeks leading up to Inauguration Day, despite losing every claim of election fraud in both state and federal courts throughout the nation, and despite being advised by your White House counsel, your attorney general, and others in your inner circle that you lost in a free and fair election, you continued to stoke the fires of widespread election fraud even though, by then, it was crystal clear and beyond any reasonable doubt, both to me and to the jury, that you knew you had lost the election; yet you continued to explicitly and implicitly urge your faithful supporters, who continued to believe in your lies, to, as you said, “stop the steal,” knowing that your messages were inciting them to take affirmative, even violent action on your behalf to ensure that you remained in power.

“Your efforts culminated in the January 6^th attack on the Capitol, in which lives were lost, hundreds were injured, property was damaged and the symbol of our democracy, the United States Capitol, was pillaged, defiled and sullied. Aside from the deaths that directly resulted from the attack, Congresspersons and Senators from both parties, as well as staff, were threatened and some were actually assaulted by the chanting mobs, who called out some of them by name, especially the Speaker of the House of Representatives and your very own vice-president. Instead of putting a stop to the carnage, the evidence showed that for hours you did nothing. There were even reports from staff that you relished the carnage as you watched it play out on television.

“You, sir, were responsible for the worst tragedy on American soil committed by fellow Americans since the Civil War. Your defense, announced in opening statements, was that there was no criminal intent because you honestly believed that there was massive voter fraud, and that you actually won by a landslide. When you exercised your constitutional right not to testify at your trial, you had to rely on external evidence that your mind was incapable of believing the truth, even when faced with an avalanche of proven facts. There was no credible evidence presented to the jury on that score and they rejected your defense. You failed to create even a scintilla of any doubt whatsoever, let alone any reasonable doubt.

“January 6^th was indeed an insurrection which never should have occurred, but it proved that the Constitution can survive an attack led by none other than the sitting President of the United States. January 6^th proved that we are a nation of laws and this trial proved that you, sir, are not above the law.

“Accordingly, it is the sentence of this court: on Count I in the Indictment that Donald John Trump serve a term in federal prison of 56 months, followed by five years of supervised release; on Count II of the Indictment, you are sentenced to 56 months in prison followed by five years of supervised release, said sentence to run concurrent with Count I; on Count III the jury found you not guilty and the court so adjudicates you; on Count IV of the Indictment, you are sentenced to 56 months in federal prison, said sentence to run concurrent with Counts I and II. If you are released after serving the mandatory 85% of your prison sentence, you will have spent roughly 48 months in prison, the length of one presidential term in office.

“In addition to the standard, general conditions of supervised release,[13] your special conditions of supervised release are as follows:

1. For a minimum of one year you will be required to wear a GPS monitor, thereafter, further electronic monitoring will be at the discretion of the U.S. Probation Office (USPO).
2. You will be required to live at only one of your residences for the entire time you are under supervision. Your choice must be approved by both the USPO and the Secret Service. You must be in your residence between 9:00 p.m. and 7:00 a.m. every day. Hours may be modified by your USPO supervisor. Changing your residence, or travelling between residences, will require court approval upon a recommendation from your supervisor and the Secret Service.
3. You will not travel beyond the borders of the federal court district in which you choose to reside without first gaining the permission of your supervisor and the Secret Service’s approval.
4. You will not travel outside of the continental United States during the first 18 months of your supervised release, and thereafter only with permission of your supervisor and with the Secret Service’s approval.
5. You will not be allowed to use social media of any kind on any platform for the entire duration of your supervised release.
6. You will be allowed to have one laptop computer which will be monitored 24/7 by the USPO. Internet usage will be limited to essential matters of personal, family and business matters only. Social media sites are specifically forbidden. Other apps on your computer must be pre-approved by the probation department before being downloaded or accessed.
7. Telephone service is limited to land-line usage only and may be used for a maximum of 14 hours per week. You will not own, possess, or use a smartphone until you have served one-half of your supervised release, and then only with approval of your supervisor. Apps on your smartphone must be pre-approved by the probation department before being downloaded or accessed.
8. E-mailing is limited to only a pre-approved contact list, and will be used only for communication to family, friends, attorneys, and agents of any businesses in which you still have an ownership or financial interest.
9. You will not perform the day-to-day executive operations of any of your businesses. Your role is limited to information gathering, advising, and consulting.
10. You will not sponsor, convene, host or attend any political rallies, conferences, conventions, caucuses, or political town hall meetings.[14]
11. You will have no contact with any witness on any opposing party’s witness list in any criminal or civil case in which you are a named party, be it past, present or future. You will have no contact with any convicted felons. You will have no contact with any past, current or future government officials, diplomatic or military officials of any nation other than the United States.
12. You will timely pay the true amount of your federal income taxes every year.
13. You may seek early termination from supervised release under the following conditions:
14. Serve at least 60% of your term on supervised release (three years).
15. Have no technical violations of probation for at least 6 months immediately prior to application; and have no substantive violations whatsoever.[15]
16. Provide proof of payment of all fines, court costs, cost of supervision fees, restitution, and income taxes, including interest and penalties.

“In addition, the court fines you $250,000 on each count, for a total $750,000.[16]

“The Defendant is hereby remanded to the Federal Bureau of Prisons to begin serving his sentence. Court is adjourned.”

 

Note: If you have any suggestions or comments on how Trump ought to be sentenced (length of sentence, terms of supervised release, etc.), hit Reply and let me know. Perhaps we can start a dialogue.

Disclaimer: As a retired state court judge, I tried my best to research what federal judges are authorized to do. I can’t guarantee that every detail is legally correct, but I tried to be faithful to the applicable laws, procedures and federal agencies mentioned in this piece, and I imposed the sentence which I would have liked to have rendered had I been sitting in Judge Chutkan’s seat.

 

[1] Typically, the low and high ends of the range are much narrower, normally about 11 to 19 months apart. Because I can only speculate with possibilities, I’m using a 37-month differential.

[2] Once in prison, he could be paroled, i.e., spend the remainder of his sentence out of prison and under supervision in the community. The judge has no authority over whether to parole him. That’s left up to the Federal Parole Commission.

[3] Two types of conditions: standard, which are applicable to everyone (e.g., obey all laws, report to supervising officer as directed, pay fines, fees and restitution, etc.); and special, those specially tailored for Trump (e.g., curfew, use of internet and social media, GPS monitoring, limits on business activities, prohibited contacts, prohibited places, etc.)

[4] Trump used a phony medical excuse to get out of military service during the Vietnam War. I wonder if he will try the same trick to get out of prison. Will he enter the courtroom at sentencing in a wheelchair pushed by his personal nurse, wrapped in a blanket and breathing with the aid of a nasal canula? Stay tuned.

[5] For a detailed account of Trump’s unsavory past go to:

https://www.huffpost.com/entry/trumps-criminal-history-s_b_11983400 .

[6] If Trump had been charged and convicted of insurrection, by law he could never hold any federal office again. Chances are a felony conviction would prevent him from holding a state or local office in many states.

[7] A lobotomy, perhaps, but they’re illegal.

[8] Despite the absence of all the intimidating features we see at maximum-security prisons, to inmates who have previously enjoyed absolute freedom of movement and elite privileges, the simple mandate that one is not able to leave his new residence for a period of years, or else risk going to a higher security facility, can be soul-crushing. For Trump there may be a silver lining – he might see some of his old friends there.

[9] If Trump had defeated Joe Biden, he could potentially wiggle out from under this case and the Mar-A-Lago case, but not the New York and Georgia cases. Once convicted and adjudicated, Trump can’t have this case dismissed. He would have to win the case on appeal, and failing that, he would try to pardon himself, or commute his own sentence, which I believe he cannot do, but with the Supermajority controlling the Supreme Court, you never know. The Mar-A-Lago case would still remain pending, but once Trump’s Department of Justice puts a new prosecution team in place, Judge Aileen Cannon would be only too happy to grant the prosecution’s motion to dismiss the case.

[10] Who are the witnesses who could speak in mitigation, and what could they possibly say? I have no idea. Perhaps his children, but certainly not Melania. Sean Hannity? Marjorie Taylor Greene? Having thrown so many of his allies under the bus, I not sure who would be left to say nice things about him.

[11] Some examples include “you’re a scumbag,” “you deserve to rot in Hell,” and “I bet your parents regret the day they brought you into this world.”

[12] It goes back to that old Biblical adage, “Love the sinner; hate the sin.”

[13] Usually, the standard conditions are recited in open court. For brevity’s sake, they are omitted here.

[14] See footnote 5 above.

[15] Technical violations are minor ones, e.g., missing curfew by a couple of hours, or late payment of a cost of supervision fee. Substantive violations are major ones, e.g., travelling without permission, secretly owning a smartphone, or chronic, repetitive technical violations.

[16] I believe that is the maximum allowable fine for each of these three felonies.