Fact Check: Indictments Against Trump Do NOT Carry 'Potential Death Penalty'

Fact Check

  • by: Marlo Lee
Fact Check: Indictments Against Trump Do NOT Carry 'Potential Death Penalty' Not Applicable

Is former President Donald Trump facing the possibility of the death penalty in the four indictments against him? No, that's not true: Lead Stories spoke to three legal experts who told us that none of the charges against Trump carries the death penalty if convicted. While one charge, "Conspiracy against rights," can be eligible for the death penalty, that's only if the person causes someone else's death. As the indictment on that charge does not hold Trump responsible for any deaths, he is not facing the possibility of capital punishment.

The claim appeared on Instagram (archived here) on August 25, 2023. It's an image with four spaces that hold pictures of Hillary Clinton, President Joe Biden, Hunter Biden and Trump. Next to Clinton and the two Bidens are the words "0 indictments." Next to Trump is a list that reads, "4 indictments, 91 charges, 700+ years in prison, potential death penalty." The caption on this picture reads:

Makes you wonder..

Here is what the Instagram post looked like at the time of writing:

Screenshot 2023-08-28 at 12.26.38 PM.png

(Source: Instagram screenshot taken on Mon Aug 28 19:25:25 2023 UTC)

At the time of writing, Trump had been indicted four times, most recently in Georgia. The Instagram post does not specify which of the charges supposedly comes with the potential of capital punishment. The charges against Trump came from two judicial entities: federal and state. The two state-level indictments are from New York and Georgia. New York ruled the death penalty unconstitutional in 2004.

Trump's Georgia indictment and most of the federal charges do not potentially mean the death penalty. One charge, conspiracy against rights (18 USC 241), is a federal charge against Trump that does have the possibility of the death penalty. However, according to an August 29, 2023, email from Daniel Richman, a professor of criminal law at Columbia University, Trump would not be sentenced to death for that crime if convicted because he did not cause a death while committing it:

While 18 USC 241 provides for the death penalty, there is zero basis to believe at this point that is a possibility in the Trump case. The Eighth Amendment rules out the death penalty unless the defendant intended or had a high degree of culpability with respect to the death of the victim. The indictment makes no effort to lay out any such connection. Nor does it plead any of the aggravating factors -- from a list in the federal death penalty statute -- that need to be specified. Nor is there any reason to believe that the Justice Department filed the required notice to seek the death penalty or has any plans to do so.

Peter Carr, a spokesperson for Special Counsel Jack Smith's office in the Department of Justice, told us in an August 29, 2023, email that the claim in the Instagram post is wrong:

That claim is not accurate. The indictment does not contain the special findings required: 9-10.000 - Capital Crimes | JM | Department of Justice.

As the court noted in Trump's arraignment, the maximum penalty for the 18 USC 241 charge (Count 4) in this indictment is 10 years.

The maximum penalties for the other counts are as follows:

Count 1: 5 years

Counts 2-3: 20 years each

Kay Levine, a professor of criminal law at Emory University, wrote Lead Stories in an August 29, 2023, email that none of the crimes Trump has been charged with carry the death penalty and that the harshest punishment would be, in effect, life in prison:

None of the crimes he has been charged with carries the death penalty.

If he were convicted of several crimes and received sentences of consecutive prison time for multiple charges, he might be serving out the rest of his life in prison. But that is not the death penalty.

Other Lead Stories articles on claims related to Donald Trump can be found here.

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Marlo Lee is a fact checker at Lead Stories. She is a graduate of Howard University with a B.S. in Biology. Her interest in fact checking started in college, when she realized how important it became in American politics. She lives in Maryland.

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