Bloomberg Law
Aug. 16, 2023, 8:00 AM

Trump’s Jail Time Doesn’t Matter, But Drawing a Red Line Does

Tonja Jacobi
Tonja Jacobi
Emory University School of Law

Many commentators are measuring the relative significance of the four indictments against former President Donald Trump by adding the potential number of years he could face in prison for each charge, and comparing the mind-boggling sentences—some of which could total hundreds of years.

In reality, judges don’t often sentence white-collar criminals to such lengthy terms, and this is just an exercise in sensationalism.

The real weight of each criminal matter Trump faces depends on the strength of the legal cases, and more importantly, on their role in upholding the rule of law and this nation’s democracy.

It’s tempting to wave away the first indictment, brought by the Manhattan district attorney in March, as a trifle since it concerns the almost farcical payment of hush money to adult-film star Stormy Daniels to silence her about an alleged affair with Trump.

But it’s a borderline case not just in terms of its weightiness, but legally speaking. The campaign-finance aspect of this charge hinges in part on whether Trump would have bribed Daniels to hide his affair from his recently postpartum wife, as well as from the electorate, which would be difficult to prove.

The June federal indictment in Miami for taking and retaining classified documents, as well as for obstruction of justice in the cover-up, is more significant. Legally, the case is much more substantiated, with recordings of Trump himself bragging about having documents that were too secret and important for him to show even those he was waving the papers in front of.

The additions to those charges that came later in the month solved a lot of the potential legal infirmities with the case. The new evidence described in the superseding indictment undermines Trump’s claimed defenses, such that he believed the documents had been declassified “in his mind.”

This indictment is also not just more significant legally, but also in its potential national security impact. Trump had kept documents relating to highly sensitive matters, such as America’s war plans and its nuclear secrets. He kept them in various cupboards and other similarly insecure places around Mar-a-Lago, where foreign nationals with ill intent could easily have accessed them.

Fundamentally, the case is important because one of Trump’s defenses is that he has the legal right to keep the documents he wants since he’s the former president. Bringing these charges says Trump isn’t above the law. We’ve learned that many politicians accidentally keep documents, but Trump thumbed his nose at the government’s attempts to get these vital documents back.

Despite the national security interests at stake in the documents case, the two latest indictments, at the federal and state level—regarding the Jan. 6 insurgency and the associated conspiracy to overturn the 2020 election—are the most important of all.

Both the federal and state charges describe broad conspiracies between Trump, some of his lawyers and advisers, and various cronies to steal the 2020 election. The different elements of the conspiracy are fascinating, from interfering with official polling machine data to putting forth fake electors to the notorious phone call when Trump demanded that Georgia Secretary of State Brad Raffensperger find the exact number of votes to convert his loss into a win.

Legally, the biggest difference between the two Jan. 6 indictments is that Georgia relies on its Racketeer Influenced and Corrupt Organizations Act statute to charge Trump with a broad racketeering scheme as part of the fraud. This means Georgia has greater leeway to introduce evidence to paint a broad picture of a pattern of malfeasance, such as evidence of misbehavior in other jurisdictions.

Politically, the most important difference between the Jan. 6 indictments is they represent two different jurisdictions. If Trump manages to win office again and convince a court that he can pardon himself, or else convince a Republican victor to do it for him, there’s still a separate body that might hold him accountable.

And it’s accountability for his attempt to steal a federal election that makes these indictments the most important. America’s greatest gift to the world was the development of representative democracy. Democracy only works if the loser of any election hands over the reins of power to allow for a peaceful transition to a new regime.

Jan. 6 was not only shocking because it saw a riot on the nation’s Capitol, with police officers beaten and killed defending the building that houses our democracy and the people within it. That riot was part of a broader threat to the very existence of democracy, the rule of law, and the institutions that make our society function.

Jan. 6 was not a one-off. Even the Daniels cover-up is part of Trump’s pattern of disrespecting the transparency and accountability of the democratic process.

The federal and state indictments over Trump’s attempt to steal the election tell us our political system will be defended and that those who try to bring it down will be held accountable.

That is more important than whether Trump goes to prison at all, or for how long. The most important thing is that he be made to answer for trying to tear asunder what others have built for over 200 years.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Tonja Jacobi is professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, where she specializes in Supreme Court judicial behavior and public law.

To contact the editor responsible for this story: Jessie Kokrda Kamens at

Learn more about Bloomberg Law or Log In to keep reading:

Learn About Bloomberg Law

AI-powered legal analytics, workflow tools and premium legal & business news.

Already a subscriber?

Log in to keep reading or access research tools.