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Why Michael Cohen Won’t Get Anywhere Near 65 Years in Prison

On Tuesday, Donald Trump’s former attorney Michael Cohen pleaded guilty to a slew of crimes in federal court. His plea deal reveals that Cohen has admitted to tax fraud, making false statements to a bank, and violating campaign finance laws at Trump’s direction in order to conceal the president’s affairs. Each of these felonies carries a heavy penalty under federal sentencing guidelines, and the plea deal states that Cohen faces a maximum prison term of 65 years, a fact repeated by outlets including CNN and the New York Times. Is Cohen really at risk of spending the rest of his life in prison?

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No—and it isn’t just because he took a plea deal. The 65-year figure isn’t wrong exactly, but it doesn’t reflect the reality of federal sentencing. No reasonable judge would impose it, and no appeals court would uphold it. Even if Cohen had rejected a plea bargain, gone to trial on these charges, and received a guilty verdict, he would not be at real risk of a 65-year sentence.

Federal sentencing guidelines are promulgated by the U.S. Sentencing Commission, an independent agency of the judicial branch. Calculating a sentence under these guidelines is notoriously difficult. Although these rules aim for consistency and transparency, they can be so confusing that there is an understandable temptation to simply add up the maximum penalty for each charge and call it a day. In Cohen’s case, it looks like this: five charges of tax evasion (each with a five-year maximum), plus one charge of making a false statement to a bank (30-year max), plus one charge of causing an illegal corporate contribution (five-year max), plus one charge of making an illegal campaign contribution (five-year max). Add it together and you’ve got a possible 65-year sentence for all eight charges.

There are two basic problems with this assessment. First, it runs the sentences consecutively, that each penalty is stacked upon the others. But that’s unrealistic. Carissa Byrne Hessick, a professor at the University of North Carolina School of Law, told me that many counts “are presumptively grouped together for sentencing purposes” under the federal guidelines. In Cohen’s case, both sides have agreed to group all eight counts, because the penalty for these offenses is “determined largely on the basis of the total amount of harm or loss” they caused. There is a small dispute between Cohen’s attorneys and federal prosecutors over exactly how these counts should be grouped, but the outcome of that disagreement should only affect his prison term by a few months.

Second, the sentencing guidelines rarely recommend the imposition of a maximum penalty. Instead, they assign each crime a “base offense level” that comes with a suggested prison term. The offense level may rise depending on the seriousness of the defendant’s actions, and the prison term increases substantially if the defendant has a criminal history. Because Cohen has no criminal record, he was never at serious risk of receiving a maximum penalty.

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Here’s how the math works in Cohen’s case. One count in the group, lying to a bank, carries a maximum sentence of more than 20 years. That triggers a base offense level of seven, which comes with just zero to six months in prison. It is then scaled up 16 levels because of the sizable sum of money involved in his crimes; two levels because Cohen used “sophisticated means,” such as shell companies, to commit fraud; and two more because he used a “special skill” (his law license) to commission and conceal these crimes. Three levels are subtracted because Cohen accepted responsibility and pleaded guilty in a timely manner.

That leaves Cohen at an offense level of 24, or 23 under his preferred calculations. (Again, there’s an arcane dispute over grouping.) The guidelines recommend 51 to 63 months for level 24 and 46 to 57 months for level 23. In the spirit of compromise, prosecutors advised a sentence of 46 to 63 months for Cohen. U.S. District Judge William H. Pauley will decide what sentence to impose at a December hearing.

Federal judges generally follow the terms of a plea bargain that comports with the sentencing guidelines. The Supreme Court has ruled, though, that these guidelines are advisory, not mandatory. Pauley could, then, impose a higher sentence, but that’s unlikely to happen. Sentences outside of the advisory range are subject to appeal, and the Supreme Court has held that appellate courts may consider and reject such deviations. If Pauley did attempt to extend Cohen’s sentence, he would probably be reversed by the 2nd U.S. Circuit Court of Appeals. (On the other hand, if Cohen chooses to cooperate with investigators, Pauley may lawfully lower his prison term.)

There’s no great harm in citing the 65-year figure to illustrate the gravity of Cohen’s crimes. But it does create the impression that Cohen might face de facto life imprisonment—leading to confusion and, perhaps, dismay when he serves just a few years. In truth, his eventual sentence will almost certainly mirror the recommendations of the guidelines. Cohen has not received any kind of sweetheart deal. He appears poised to receive a typical prison term for his crimes. That’s 63 months, maximum, not 65 years behind bars.