Is there not an anti-double counting provision that applies to prohibit applying both 2C1.1(a)-(b) and 3b1.3? There is one for the similar “government official/color of law” specific offense characteristic in 2H1.1
My question on this has always been that if convicted, and given a sentence of, say, 90 months, would Judge Chutkan send a (then) 78-79 year old man in somewhat poor health to federal lockup? Are we talking about a "country club" prison? Or is he likely to get "home confinement" with an ankle bracelet, and is home confinement an option when your home is either an opulent country club or am 11,000 square foot apartment on Fifth Ave? Would home confinement mean a restriction on visitors? Would it mean a prohibition on use of social media or media appearances? Fox, would of course, send a remote broadcast setup to his home and he'd be on TV several times a week if not.
Age and health are reasons for a downward departure, including for the purposes of making home confinement an option (§5H1.1), but it would be pretty hard to depart downward THAT far in this case, if I'm reading this right. Let me explain:
Home detention is §5F1.2 in the sentencing guidelines. The actual rule states that "Home detention may be imposed as a condition of probation or supervised release, but only as a substitute for imprisonment." This is not my area of expertise, but that reads to me as making it part of probation or supervised release, which limits it to when those are permissible. (The substitution language is probably because you can get probation or supervised release that extends beyond the time someone would otherwise be imprisoned.)
So are probation or supervised release possible? Zone D of the sentencing chart—any guidelines range with a minimum sentence of at least 15 months, which for a minimal criminal history (assumed in the post) is offense level 14 and up—means that probation is off the table (§5B1.1) and requires that the minimum sentence of the guidelines range be served as imprisonment without substitution by any of the more lenient options (§5C1.1). So only the time between the range minimum and the actual imposed sentence would even be eligible for supervised release. The difficulty of getting out of Zone D—going from a base offense level of at least 27 down all the way to 13—looks basically impossible for this charge. You can shave a lot of years off to decrease the possibility that he dies in prison, but that's about it.
Anyway, the list of mandatory, discretionary, standard, and special conditions imposed as part of supervised release are long enough to have their own subsection (§5D1.3), which runs for six pages. One paragraph amounts to, ". . . and anything else the judge thinks necessary," which could mean a lot of things. And that's not even the section on home detention. Home detention might be a short, single-sentence rule, but the official commentary is more like a page and, if implemented well, addresses at least one of your concerns: "If the court concludes that the amenities available in the residence of a defendant would cause home detention not to be sufficiently punitive, the court may limit the amenities available."
Now, will that stop him from going on Fox? Probably not. Fox could also interview him from prison. And telling someone to stop talking generally runs into First Amendment problems. But he'd be absolutely barred from committing another crime, allowing him to be reimprisoned if he attempted to re-commit the crime. And if any of his co-conspirators are ever convicted of a felony, one of the standard conditions is that he can't have any contact with them without permission. It's not a lot, but it's something.
Tremendously helpful. Thank you. The only thing I would take issue with is the going on Fox part. I don't think the Bureau of Prisons is in any way required to facilitate media appearances, are they? They're not going to allow him them to bring in a camera crew twice a month. I would think it would be limited to phone calls...with that clicking sound in the background.
The BOP regulations I have found have an entire section on visits to the institution for the purpose of an interview. They normally take place in the visiting room, although the Warden may determine that another place would be less disruptive or whatever. There is a section on restricting how often a particular inmate can be interviewed in person to a single 1-hour interview per month, but only for someone in a special confinement unit or hospital status or whatever, and then only if there's a particular need that would necessitate the limitation. So I have to assume that in principle the number of in-person interviews is unlimited. However, see below for a caveat on that.
I don't see a ton of discretion in the list of reasons why a warden can disapprove an interview request, although if the frequency of interviews was becoming disruptive then that would certainly be an allowable reason. However, the regulations also provide that if interviews are becoming too common—let's say Trump runs for President again in 2028—the warden can establish a press pool. So the regulations anticipate the possibility of high-demand periods, although it's unclear to me if the press pool regulations were written in anticipation of a single high-demand interviewee or just a period when many interviews of different people would overwhelm the prison or both, but it's not like there's never been celebrity prisoners before.
There's a bunch of other restrictions, but most of those have to do with the privacy rights of other prisoners, the bureau's right to respond any allegations made about the prison, &c. Also, they wouldn't be allowed to pay Trump for the interviews.
I'm not familiar with researching BOP regulations, so I could be missing something outside of the particular document I was looking at or looking at an out-of-date version, but that's my quick and dirty research results.
I'm inclined to think that the President of the United States is far outside the heartland of "a public official" or "abusing a position of trust" or "an elected official." Were I either an AUSA on the case or a member of the judicial staff analyzing sentencing, I would argue that because the President is uniquely trusted with so much power and authority, an upward departure would be appropriate to recognize that the abuse of trust is vastly greater than what the Guidelines typically envision.
One quibble is the assumption that the presidency remains in Democratic hands. If the Republicans win the presidency prior to his death, their first act will probably be to pardon him.
The purpose of the column is to explain how the Guidelines would treat Trump, if convicted and sentenced. You are correct that there are many political interventions that might occur.
Is there not an anti-double counting provision that applies to prohibit applying both 2C1.1(a)-(b) and 3b1.3? There is one for the similar “government official/color of law” specific offense characteristic in 2H1.1
This is a good point. It is possible that the abuse of position of trust points would not get added.
My question on this has always been that if convicted, and given a sentence of, say, 90 months, would Judge Chutkan send a (then) 78-79 year old man in somewhat poor health to federal lockup? Are we talking about a "country club" prison? Or is he likely to get "home confinement" with an ankle bracelet, and is home confinement an option when your home is either an opulent country club or am 11,000 square foot apartment on Fifth Ave? Would home confinement mean a restriction on visitors? Would it mean a prohibition on use of social media or media appearances? Fox, would of course, send a remote broadcast setup to his home and he'd be on TV several times a week if not.
Age and health are reasons for a downward departure, including for the purposes of making home confinement an option (§5H1.1), but it would be pretty hard to depart downward THAT far in this case, if I'm reading this right. Let me explain:
Home detention is §5F1.2 in the sentencing guidelines. The actual rule states that "Home detention may be imposed as a condition of probation or supervised release, but only as a substitute for imprisonment." This is not my area of expertise, but that reads to me as making it part of probation or supervised release, which limits it to when those are permissible. (The substitution language is probably because you can get probation or supervised release that extends beyond the time someone would otherwise be imprisoned.)
So are probation or supervised release possible? Zone D of the sentencing chart—any guidelines range with a minimum sentence of at least 15 months, which for a minimal criminal history (assumed in the post) is offense level 14 and up—means that probation is off the table (§5B1.1) and requires that the minimum sentence of the guidelines range be served as imprisonment without substitution by any of the more lenient options (§5C1.1). So only the time between the range minimum and the actual imposed sentence would even be eligible for supervised release. The difficulty of getting out of Zone D—going from a base offense level of at least 27 down all the way to 13—looks basically impossible for this charge. You can shave a lot of years off to decrease the possibility that he dies in prison, but that's about it.
Anyway, the list of mandatory, discretionary, standard, and special conditions imposed as part of supervised release are long enough to have their own subsection (§5D1.3), which runs for six pages. One paragraph amounts to, ". . . and anything else the judge thinks necessary," which could mean a lot of things. And that's not even the section on home detention. Home detention might be a short, single-sentence rule, but the official commentary is more like a page and, if implemented well, addresses at least one of your concerns: "If the court concludes that the amenities available in the residence of a defendant would cause home detention not to be sufficiently punitive, the court may limit the amenities available."
Now, will that stop him from going on Fox? Probably not. Fox could also interview him from prison. And telling someone to stop talking generally runs into First Amendment problems. But he'd be absolutely barred from committing another crime, allowing him to be reimprisoned if he attempted to re-commit the crime. And if any of his co-conspirators are ever convicted of a felony, one of the standard conditions is that he can't have any contact with them without permission. It's not a lot, but it's something.
Tremendously helpful. Thank you. The only thing I would take issue with is the going on Fox part. I don't think the Bureau of Prisons is in any way required to facilitate media appearances, are they? They're not going to allow him them to bring in a camera crew twice a month. I would think it would be limited to phone calls...with that clicking sound in the background.
The BOP regulations I have found have an entire section on visits to the institution for the purpose of an interview. They normally take place in the visiting room, although the Warden may determine that another place would be less disruptive or whatever. There is a section on restricting how often a particular inmate can be interviewed in person to a single 1-hour interview per month, but only for someone in a special confinement unit or hospital status or whatever, and then only if there's a particular need that would necessitate the limitation. So I have to assume that in principle the number of in-person interviews is unlimited. However, see below for a caveat on that.
I don't see a ton of discretion in the list of reasons why a warden can disapprove an interview request, although if the frequency of interviews was becoming disruptive then that would certainly be an allowable reason. However, the regulations also provide that if interviews are becoming too common—let's say Trump runs for President again in 2028—the warden can establish a press pool. So the regulations anticipate the possibility of high-demand periods, although it's unclear to me if the press pool regulations were written in anticipation of a single high-demand interviewee or just a period when many interviews of different people would overwhelm the prison or both, but it's not like there's never been celebrity prisoners before.
There's a bunch of other restrictions, but most of those have to do with the privacy rights of other prisoners, the bureau's right to respond any allegations made about the prison, &c. Also, they wouldn't be allowed to pay Trump for the interviews.
I'm not familiar with researching BOP regulations, so I could be missing something outside of the particular document I was looking at or looking at an out-of-date version, but that's my quick and dirty research results.
I'm inclined to think that the President of the United States is far outside the heartland of "a public official" or "abusing a position of trust" or "an elected official." Were I either an AUSA on the case or a member of the judicial staff analyzing sentencing, I would argue that because the President is uniquely trusted with so much power and authority, an upward departure would be appropriate to recognize that the abuse of trust is vastly greater than what the Guidelines typically envision.
One quibble is the assumption that the presidency remains in Democratic hands. If the Republicans win the presidency prior to his death, their first act will probably be to pardon him.
The purpose of the column is to explain how the Guidelines would treat Trump, if convicted and sentenced. You are correct that there are many political interventions that might occur.