- DOJ will seek incarceration for Trump, a national security attorney and former US prosecutor say.
- This is given the scope of the crimes alleged in the 37-count indictment unsealed on Friday.
- The big question will be: If he is convicted, how to incarcerate a former president?
The Department of Justice will likely “want to go for incarceration” in their prosecution of former President Donald Trump, Kel McClanahan, a national security attorney and law professor at George Washington University, said on Friday following the unsealing of special prosecutor Jack Smith’s stunning 37-felony-count indictment of the former president.
McClanahan said evidence in the indictment was laid out to show “that this is a kingpin who knowingly broke the law, endangered national security, endangered nuclear weapon security, endangered other countries’ national security.”
The counts — including 31 of “willful retention” of documents under the Espionage Act — are serious, experts, including Fox News legal commentator Jonathan Turley and former US attorney and New Jersey Gov. Chris Christie, have said.
If Trump is convicted, some counts hold maximums of 10 years (willful retention) or 20 years (obstruction of justice) for each count, according to Politico.
Sarah Krissoff, a current defense attorney at Day Pitney LLP and former assistant US attorney in the Southern District of New York, agreed the DOJ would want a serious sentence.
“To the extent that there’s a conviction here, the Department of Justice is going to want to be seeking a real sentence,” she told Insider, given the “nature of the conduct, how long it lasted, his involvement, the involvement of other people, working allegedly at Trump’s direction.”
Krissoff pointed out that if there is a conviction, Trump’s sentence would depend on the judge overseeing the case and what that judge feels is appropriate. In this case, that looks likely to be US District Judge Aileen Cannon, who Trump appointed.
If there is a conviction and the sentence includes incarceration, McClanahan said there’s a big untested question with which the DOJ and courts will have to contend: How do you imprison a former president?
McClanahan asked how you incarcerate someone “who has a Secret Service detail and who has national security secrets bouncing around his brain, such that if someone holds a shiv to his neck, he’ll reveal the location of our missile bases.”
He worries that Trump would be a “foreign intelligence gold mine for most countries on earth” if in prison. It’s more likely that, if convicted, he’d be sentenced to house arrest with an ankle monitor, McClanahan said.
Krissoff, however, views this differently.
“Trump can share that information that is in his head whether he is incarcerated or not incarcerated,” she said. “So I’m not particularly concerned that, as a citizen, that the incarceration will, you know, trigger the sharing of information that wouldn’t be shared otherwise.”
Part of what is alleged in the indictment was that on two occasions, Trump shared classified documents with visitors without the appropriate security clearance at his Bedminster, New Jersey, golf club.
“Trump’s a talker!” Krissoff continued.
Trump, for his part, has denied any wrongdoing and has been attempting to control the narrative by releasing the news that he was indicted on Thursday night.
The special counsel’s office did not immediately respond to a request for comment.