(L-R) Hunter Biden and Donald Trump
Credit: Reuters Photos
By Barbara McQuade
The Supreme Court’s recent decision that a president’s official conduct is immune from criminal prosecution is significant for former President Donald Trump’s Jan. 6 trials — but it is unlikely to provide relief to Trump for his Manhattan felony conviction. That’s because the hush-money case involved conduct unrelated to the performance of his duties as president. Nonetheless, Judge Juan Merchan has delayed sentencing until Sept. 18 to give Trump an opportunity to litigate the issue.
When Trump is eventually sentenced, how will Merchan proceed? And for that matter, how should Hunter Biden, son of the current president, be sentenced for his conviction? Partisans hoping for either man to go to jail are likely to be disappointed — and the reason has nothing to do with the Supreme Court or the November election.
Simply put, both men are first-time offenders convicted of non-violent crimes. True, Trump now has some added protection — though how much is not clear — provided by the Supreme Court’s decision to grant presidents a measure of criminal immunity. But Merchan was never likely to sentence him to prison time before that ruling.
Most judges will tell you that sentencing is the most difficult part of their jobs, and that fashioning the appropriate penalty is more art than science. Based solely on their clean criminal records, I would be surprised if either Trump or Biden were sentenced to prison this time around.
But each is also facing another criminal trial — in Trump’s case, three more trials. If either is convicted in those cases, neither the former president nor the son of the current president will be able to cite a lack of criminal history to seek leniency.
Judges are instructed to follow what is referred to as the “principle of parsimony.” As that concept is described in the federal sentencing statute, a court should impose a sentence “sufficient, but not greater than necessary,” to advance the purposes of sentencing. Those purposes include public safety, deterrence, rehabilitation, just punishment, uniformity, and the need to promote respect for the rule of law, among others. The court must also consider the nature of the offense and the character of the offender.
The statutes under which Donald Trump and Hunter Biden were convicted set the upper limit on the sentence that may be imposed. Trump was convicted of 34 counts of falsification of business records, Class E felonies, each punishable by up to four years in prison. Do the math and you are at a maximum sentence of 136 years. Biden was convicted of two counts of lying on forms to purchase a gun, each punishable by up to 10 years in prison, and one count of possessing a gun while addicted to illegal drugs, with a maximum sentence of five years, for a total of 25 years. But because of sentencing conventions, neither Trump nor Biden will serve anything close to those numbers.
First, concurrent sentencing. Judges usually order prison terms for multiple counts to be served at the same time. Thus, when Trump is sentenced later this summer, he will likely face no more than four years, not 136. The fact that Trump was convicted of 34 counts, and not just one, however, still could influence the judge’s decision. Trump’s lack of remorse and repeated violations of the court’s gag order could also lead to a higher sentence.
Attorneys for each side will also cite comparable cases. In his book, Trying Trump, Norm Eisen, a former White House ethics lawyer, listed 457 cases charged in New York for falsification of business records since 2020. In 55 of those cases, the defendants had been sentenced to prison time. Three were convicted of crimes related to campaign finance violations.
For Hunter Biden, who was convicted in federal court, the US Sentencing Guidelines provide the court with non-binding a range of punishments based on data from other cases. Based on offense characteristics and criminal history, the guidelines suggest a range of 15-21 months in prison. When the judge imposes Biden’s sentence, likely in October, she is permitted to depart downward from the guidelines range if she finds that the conduct represents a “marked deviation” by the defendant “from an otherwise law-abiding life.”
Notwithstanding the Supreme Court’s ruling on presidential immunity, the most important factor for each man is their lack of criminal history. In both cases, judges are permitted to sentence the defendant to probation, which means no prison time so long as they comply with certain conditions, such as not associating with convicted criminals or undergoing treatment for substance abuse as needed.
But being a first-time offender is an argument a defendant can make only once. Following a conviction in a subsequent case, an offender can no longer claim that his crime was aberrant behavior by an otherwise upstanding citizen.
While trial dates have not yet been set, Trump faces trials in federal court in Washington, DC, and in Fulton County, Georgia, relating to his efforts to interfere in the 2020 presidential election. He also faces federal charges in Florida alleging that he unlawfully retained sensitive documents containing national defense information. The Supreme Court’s ruling delays those cases, and may reduce some of the charges, but doesn’t make them go away.
If Trump is elected in November, he may be able to derail the federal indictments, but not the case in Georgia. That trial will likely be able to proceed after some fact-finding about whether any of Trump’s phone calls to Georgia election officials — exhorting them to find 11,780 more votes — could be considered “official” duties. Even if that trial were delayed until after a second Trump presidency, a conviction in 2029 could still bring significant prison time. The statutory maximum term of imprisonment for a conviction under the relevant Georgia statute is 20 years. Georgia has no sentencing guidelines.
Similarly, Hunter Biden faces a trial in September on federal tax charges. A conviction could lead to a sentence of incarceration for him as well. While the sentencing guidelines range of 37-46 months is well below the statutory maximum term of imprisonment of 17 years, a sentence of probation seems far less likely the second time around.
Both Donald Trump and Hunter Biden may be able to dodge prison this time. But defendants — even former presidents — get only one chance to the play the first-time offender card.