UPDATE 4.1.2023 (not an April Fool’s joke): The media has reported that Donald Trump will be formally arrested in New York on April 4, 2023.
For folks who watch lots of crime procedural dramas, you may be disappointed to learn that most people accused of white-collar crimes are not handcuffed and put in a police cruiser when they are arrested.
In fact, it’s not at all unusual for a person to know the date they will be arrested in white collar criminal cases.
Here’s how it works:
In a typical white-collar criminal case, the target has known about the investigation for months or even years. A grand jury investigation can take some time in a complex case, and the target and his lawyers will spend that time gathering evidence to try to convince the prosecutor not to indict. The target and his lawyers may participate in proffers or lengthy plea negotiations to resolve the case.
If that process breaks down or if the two sides aren’t able to reach a plea agreement, then the next step is for the grand jury to issue an indictment. After indictment, the defendant is arrested and booked. There are two ways for an arrest to happen: (1) a surprise arrest, or(2) a scheduled self-surrender.
Prosecutors rarely use a surprise arrest in white-collar cases. This type of arrest occurs when law enforcement surprises the defendant with an arrest, handcuffs him, and takes him to be formally booked. Particularly aggressive, or attention-seeking, prosecutors will tip off the media to the arrest, ensuring that images of the arrest will be blasted across the news and social media. This is commonly known as a “perp walk,” and I’ve written about perp walks before.
Prosecutors can use a surprise arrest even when the defendant is not high-profile or the media is uninterested in the case. In those situations, law enforcement shows up at the person’s house of office without notice and arrests the defendant through a show of force. The only difference is that there’s no media coverage, just gawking neighbors or co-workers.
All in all, a surprise arrest is incredibly stressful. It’s also unnecessary in most white-collar criminal cases because the defendant is neither a danger (thus requiring arrest by force) nor a flight risk (thus requiring a surprise arrest to prevent flight).
The second type of arrest—the scheduled self-surrender—is far more common in white-collar cases. The prosecutor calls to tell me that the grand jury has issued the indictment and to send a copy of it. The indictment at this point is under seal on the court docket, so it’s not publicly available. I will tell the prosecutor that my client will self-surrender that morning or afternoon or on a specific date. I call my client to break the bad news and to arrange to meet him at a designated location to take him to be arrested and booked. There are no handcuffs involved.
In federal cases, we go to the closest federal U.S. Marshal’s office at the courthouse for arrest and booking. The prosecutor need not be present for the self-surrender but may give the Marshal’s office a heads up that my client is coming in. I try to bring my client there in the morning because I want to be sure that he gets in front of a magistrate judge for the initial appearance that day and is not stuck overnight in a holding cell. The booking process can take some time—photograph, fingerprints, lots of forms to fill out, and so forth. I will accompany my client to the Marshal’s office but I’m not allowed to be with my client during the booking process itself. The next time I’ll see him is in the courtroom for the initial appearance.
This call from the prosecutor about the indictment is rarely out of nowhere. In most cases, the prosecutor will let me know when it’s my client’s last chance to agree to a plea offer because the indictment will be issued soon. We will know an indictment is coming within a week or few weeks. I will always ask the prosecutor whether she will seek pre-trial detention or not, and whether my client be permitted to self-surrender. In most of my cases, the prosecutor is fine with a self-surrender and will not seek pre-trial detention.
It’s my practice when I’m working against prosecutors in an unfamiliar jurisdiction to ask what their practice is. Some places (cough—SDNY—cough) do more surprise arrests. It’s extremely rare for this to happen in DC but it does happen. I’ll also ask other defense lawyers who work in this jurisdiction about the practice there. The last thing I want is for my client to be arrested unexpectedly or for the prosecutor to ask for pre-trial detention without my advance knowledge. I want to prepare to argue that my client be released pre-trial.
I’ve had only one case (knock on wood) in which a prosecutor with whom I’d been dealing for months on a white-collar criminal case arrested my client out of the blue, without giving me a chance to have him self-surrender. It was in DC, which is not a U.S. Attorney’s Office that is known for surprise arrests.
In that case, multiple law enforcement agents came to my client’s house early one morning, roused him out of bed, and arrested him forcefully in front of his teenage daughter. When my client’s wife finally got ahold of me, I gave the prosecutor a piece of my mind. All the prosecutor had to do was pick up the phone, tell me the grand jury had indicted my client, and I would have brought my client in that day for arrest and booking. He tried to tell me this was “office policy.” It absolutely was not. I still hold a grudge. The whole process was terrible enough for my client and there was simply no reason to humiliate him in front of his daughter. It was deliberately cruel. It’s also a complete waste of law enforcement resources. It struck me as nothing more than an exercise to intimidate my client or try to look tough.
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As for Mr. Trump, he’s the rare defendant who publicizes a possible arrest and seems to relish its occurrence. Most people want to keep an upcoming arrest as quiet as possible. That said, I’ve never had a client who is running for President and has Secret Service protection. I’d be shocked if Mr. Trump’s legal team doesn’t learn when the indictment is handed down and doesn’t have the chance to have him self-surrender. Perhaps this will be the first-ever example where a client turns down a self-surrender and begs for a perp walk. After all, in his mind, an arrest is a political plus. And a public arrest through a perp walk would be his dream.
Strange times, my friends, strange times.
UPDATE: Well, I was right when I wrote this post 10 days ago. The Manhattan DA’s office appears to be working cooperatively with Mr. Trump’s legal team and the Secret Service to handle the arrest, booking, and arraignment process. Whatever happens on Tuesday, it is sure to be a media circus.