No, Trump won't face the death penalty in 2020 election indictment | Fact check
The claim: Charges against Trump include potential for death penalty
An Aug. 2 Facebook post (direct link, archive link) claims former President Donald Trump faces more than just prison time following his third indictment in four months.
“Punishment For Trump if Convicted On New Charges Could Include Death Penalty,” reads the post from Dinesh D’Souza, a right-wing commentator who was pardoned by Trump four years after he pleaded guilty to making illegal campaign contributions.
The post was shared more than 30 times in two days. Other versions of the claim racked up hundreds of additional shares and comments. The claim was also included in an Aug. 1 article by far-right news and commentary website Breitbart News.
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Our rating: False
The special counsel's office overseeing the prosecution told USA TODAY the claim is false, explaining that Trump’s case does not meet the requirements for capital punishment. Legal experts agreed the claim is not valid and pointed out the death penalty is rare, even in applicable cases.
Prosecutor says charges against Trump don't meet requirements for death penalty
Trump pleaded not guilty Aug. 3 to charges that he tried to steal the 2020 presidential election.
Special counsel Jack Smith's office, which is overseeing the case, said the claim that the death penalty is on the table in Trump's case is false.
“The indictment does not contain the special findings required,” spokesperson Peter Carr said.
Carr referred USA TODAY to the relevant section of the Justice Manual that says an indictment with the possibility of the death penalty must include, among other things, "threshold intent factors" and the "existence of statutory aggravating factors."
Fact check: Biden had nothing to do with Trump's indictment in classified documents probe
Trump faces charges of conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights
The last charge can have a maximum punishment of the death penalty if the crime involves attempted or successful murder, rape or kidnapping, as The Washington Post reported. However, prosecutors are not arguing Trump’s actions led to the deaths that happened during and after the U.S. Capitol riot.
The first charge has a maximum penalty of five years in prison, while the second and third each have maximum sentences of 20 years. When it doesn't involve murder, rape or kidnapping, the conspiracy against rights charge has a maximum sentence of 10 years.
That means Trump could face up to 55 years in prison if he is convicted on all counts, as Magistrate Judge Moxila A. Upadhyaya told Trump during his arraignment.
Expert calls social media claim 'preposterous,' says capital punishment is rare even in applicable cases
Stephen Bright, a visiting professor at Georgetown Law with expertise in capital punishment, said the claim that Trump could face the death penalty has “absolutely no validity.”
“The death penalty has never been proposed for nonviolent crimes in the U.S., and never for the types of crimes that Trump is accused of,” he said.
William Banks, a constitutional law scholar and emeritus professor at Syracuse University, similarly described the claim as "preposterous."
He said the death penalty is "seldom imposed" even in cases where the charges make it applicable. Though Trump could face “significant prison time” if convicted, Banks said he could just as easily avoid time behind bars.
“Judges have wide latitude in sentencing, and none of the charged crimes carry mandatory minimum sentences,” Banks said. “Trump has no prior criminal record, and any sentences that might be imposed could run simultaneously rather than being stacked on top of each other.”
USA TODAY reached out to several users who shared the post for comment but did not immediately receive a response.
Our fact-check sources:
Stephen Bright, Aug. 4, Email exchange with USA TODAY
William Banks, Aug. 4, Email exchange with USA TODAY
Peter Carr, Aug. 3, Email exchange with USA TODAY
The Washington Post, Aug. 2, Here are the four Jan. 6 charges against Trump and what they mean
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This article originally appeared on USA TODAY: False claim Trump punishment could include death penalty | Fact check
