How Would You Arrest a Former President?

As I was reading the four-journalist WaPo story noting what I noted (and provided far more details about) almost three months ago — that the investigation into Trump has been greatly complicated by the involvement of lawyers in his suspected crimes — I thought about how one might arrest Donald Trump. WaPo is interested in whether it can be done before the first debates in August. I’m interested in the logistics of it.

Especially given another temporal complication that WaPo, with all those reporters, doesn’t mention: That the DC Circuit, a panel including two Trump appointees, is taking its own sweet time ruling on DOJ’s application of obstruction to January 6, which was argued back in December. The January 6 Committee referred Trump for 1512(c)(2), which also happens to be the framework DOJ has been using since summer 2021. It’s virtually certain that no matter how the DC Circuit rules, the application can still be applied to Trump (because he corruptly sought a personal benefit involving documents). But if I were Jack Smith, I’d wait to see the guideposts Trump’s own appointees put on the application before I charged it. I have also long said that certain steps may be contingent on the Proud Boy trial, which seems like it’ll go on forever.

I’m not promising Trump will be arrested. But think about the logistical complexities of the task, if Smith were to decide to do it. How do you arrest a rich man — if not quite a billionaire — with access to several planes and his own MAGA army? How do you stage it, given all the potential or likely co-conspirators?

The question of how to arrest Trump is likely also a pressing issue given the likelihood that DOJ still hasn’t obtained all the documents Trump stole, given the multiple properties that haven’t been searched (including Trump’s jet).

One way you might do that is to arrest him first on a limited set of charges tied to the crime scene, one that wouldn’t obligate DOJ to turn over discovery on all the other things Jack Smith is still investigating, such as the targeting of Mike Pence, the defrauding of MAGAts and related campaign finance crimes, and the fake elector plots involving at least a dozen other top Republicans. Arrest him on a crime scene charge, and get it over with.

You arrest Trump and maybe one or two other people, get them in a pretrial release situation limiting their direct contact with other potential co-conspirators (and requiring a truthful statement of net worth to prosecutors, a statement that may reveal useful evidence about Trump’s income from fraudulent claims and Saudi golf tournaments). Ground his plane … and then search it. Search the other properties during the period when Trump is being processed. Prevent Trump, legally, from singing duets with other January 6 thugs.

And then you continue to investigate, superseding the initial charges after you get the testimony of Mike Pence and Evan Corcoran.

Again, this is just a thought experiment. But I thought I’d get ahead of where four-journalist teams from the WaPo will be in three months time.

165 replies
  1. Tom R. says:

    Here’s an additional scenario to consider: It may be that Fulton County is the first to act.

    — Will he waive extradition and meekly show up for arraignment? He could, but it would be somewhat out of character.

    — Will the Georgia governor interfere with the extradition process? He’s not supposed to, but he could.

    — Will the Florida governor interfere? If Georgia seeks extradition but Florida blocks it, that would make it risky for the defendant to travel out of state.

    — Any attempt to arrest him would have to be coordinated with the Secret Service. The agents will be ordered to cooperate, but not all of them will be happy about it. I assume they have a plan for dealing with this, but it will be extraordinarily messy.

    — Assuming he is eventually arraigned, what would be the conditions of pre-trial release? What sort of bond would be required? Would he be considered a flight risk? Opinions differ. What sort of travel restrictions would be imposed? Would the Secret Service vouch for him, guaranteeing his return to court?

    — As a condition of release, he will be required to abide by a protective order. He will be forbidden to “try the case in the media”. This will infuriate him. Will he manage to abide by such an order?

    • bmaz says:

      Are you kidding with this?? First off, Trump would almost certainly not be subjected to extradition, he would be issued a summons and ordered to appear. Secondly, and if he was, no FL could not blithely refuse or “block” it as both FL and GA are members of the Uniform Criminal Extradition Act. Thirdly he almost certainly would be released OR (maybe ordered not to leave the continental US) and, no, he would not be considered a flight risk. The Secret Service does not “vouch” for defendants. A gag order is unlikely, especially at arraignment.

      That is assuming the noisy PR climbing hack Fani Willis even really indicts him. Your questions are ridiculous. People are literally out of their minds on this stuff, and need to step back and get a grip on reality.

      • Tom R. says:

        1) Please tell us where in the constitution, in the UCEA, in Georgia code 17-13-1, or anywhere else it says the Georgia governor is obliged to do anything in such a case.

        2) As for the Florida governor, the UCEA and Florida statute 941.04 allow the governor to “investigate”. He can take his sweet time before fulfilling his duty.

        3) I am quite aware that such a move would not work forever. In Ortiz (1998) the Supreme Court said “In case after case we have held that […] are issues that must be tried in the courts of that [demanding] State, and not in those of the asylum State.”

        There are plenty of cases where governor monkeyed with the extradition process. Grinding through the appeals process would eat up quite a lot of time before reaching the predictable result. Playing for time would be entirely in character.

        4) I never said “blithely”. I explicitly said “He’s not supposed to, but he could” which is pretty much the opposite of blithely. In the first draft I repeated this sentence in the Florida item, but I deleted it for brevity, assuming that any person of good will and ordinary intelligence would understand that I meant it to apply to both states.

        5) The first time Bannon was arrested he was not politely asked to turn himself in. He was quite forcibly arrested at sea. For a misdemeanor. When Navarro was arrested on similar charges, he was quite forcibly and publicly arrested. Do you really want to argue that this didn’t happen?

        • bmaz says:

          I am not your research assistant, do your own. And you are still full of shit. The UCEA prescribes a 30 day period, with a possible 60 day extension, so, no, the FL governor cannot take his “sweet time”. The governor has a hard duty to comply unless an infirmity or Constitutional violation is proved up. And that is that.

          Bannon was arrested in US coastal waters on FEDERAL charges (Navarro too by the way) NOT out of state state charges under the UCEA.

          You are making readers here dumber with your comments. Don’t do that. I have actually done interstate compact cases, have you? Because you appear all over the road trying to support your BS. Give it a rest.

          • Tom R. says:

            I will let the readership be the judge of who did the research before posting and who did not, and who is spreading misinformation and who is not.

            Under Florida law, the 30-day limit (941.15) and the 60-day extension (941.17) pertain to how long the person may be held after arrest, if the demanding state is slow to pick him up.

            The duty of the governor is spelled out in 941.02. Procedures are spelled out in the next few sections. These contain no hard limits on the passage of time before arrest. The governor has a moral obligation to not screw around, but some governors have looser morals than others.

            A search on the word “days” does not turn up any other relevant time limits.

            The 30-day limit after arrest is consistent with the federal statute.

            The constitutional extradition clause imposes a clear moral obligation but does not express any hard time limits.

            • bmaz says:

              Naw, you are still full of shit. Again, how many of these cases have “you” done? Not that a protracted extradition is anywhere near likely to start with as your big postulate is premised on. And if Willis pulls that nonsense, she should be removed.

              By the way, did you neglect to consider the term “fled” in your federal cite? This is a situation of out of state putative state level offense, not a “fleeing” issue. You don’t know what you are talking about. Calm down F. Lee Bailey Jr. Let the “readership judge” that.

              • Tom R. says:

                1) Actually I did consider the federal bit about “fled”. OTOH I cannot imagine why anyone would bring it up, because…

                2) We should also consider the Florida bit (941.06) about “third state … and has not fled”.

                The upshot is that he can be extradited, and worrying about whether he “fled” is pointless in this case.

                3) I am happy to let the readership judge this point also.

                • bmaz says:

                  Fuck you and letting “the readership judge”. You are polluting this blog with horse manure. Here is what I said earlier to effectively this same crap from you:

                  “You remain full of shit. You flit back and forth with your bullshit and are doing a disservice to this commentary section. Give it a rest, or you will be given one. Most of the readers here do not know the ins and out of the UCEA and may be prone to believe your google fueled random horse manure. I do, and you are completely full of it. One last warning, give it a rest.”

                  And if you persist, you will be dealt with. Nobody here has the time or energy to deal with your crap. Stop. Now. You are googling bullshit and clearly know nothing about the intricacies of the UCEA.

          • SatanicPanic says:

            I don’t comment here but I sometimes enjoy reading the comments. I’m not sure who is right in this situation but when I read someone saying “do your own research” I’m immediately skeptical. It’s your blog and you can do what you want, but as a lurker this definitely makes me think you are probably over your skies. And you might not be, I don’t know. But again, no reasonable person says this and you know it. Tell me to fuck off if you like, I really don’t give a shit, I’m just telling you so you know how some of us see this.

            • bmaz says:

              I don’t care what you feel. I have skis but not skies (other than blue and slightly cloudy ones currently). Nobody here is the research assistant for random commenters, whether you are skeptical or not. I’ll stay with where I am at on uniform compact extraditions. This specific dialogue is beyond absurd as to Trump.

            • Rayne says:

              Thanks for sharing your POV. Now here’s one from the backend. This site isn’t lightweight and its commenters should strive to meet its content. We expect participating community members to make a good faith effort to understand fundamentals and do their own legwork before jumping into comments. In this case, someone should have educated themselves about the next steps following a Fulton County GA indictment before publishing something uninformed as the first comment beneath this post.

              We also expect community members to understand contributors and moderators here do not respond to demands, ex: Tom R.’s demand in 1) at March 4, 2023 at 8:12 am in response to bmaz’s reply, particularly after demonstrating inadequate research.

              In case you haven’t already checked the site’s About page, bmaz has practiced both criminal and civil trial law for decades and is one of the contributor/moderators here at EW, having been here nearly since the site’s inception.

              Welcome to emptywheel’s comments.

      • Manwen says:

        Bmaz, I applaud and deeply appreciate your comments here and subsequent comments below that enlighten and edify us all. I value our knowledge of how these legal maneuvers play out in reality. Sincerely.
        But, I have to take issue with your blithe comments that Fani Willis is a “noisy PR climbing hack.” Several points here.
        1. I believe she has given fewer than five interviews over 2 years despite demands in this ridiculously high-profile case.
        2. She made a mistake by hosting a fund-raiser for someone running against one of her targets. A terrible move, but at the time she hosted the fundraiser, she might not have known the person would be a target. Also, without going into details, no one thought the candidate she supported would win the primary, nor the run-off that followed. I imagine many thought the fundraiser was merely perfunctory, at the time.
        3. As an assistant DA, she brought one of the most high-profile cases in Atlanta history–the school test-cheating scandal. Hardly anyone knew that she was the lead on the case because she kept a low-profile over the multiple years that the case was in the news. One of her assistants, Chris Rucker, frequently appeared as the public face of the cases; she maintained a low-profile.
        4. She ran for DA against her boss who was a very “noisy PR climbing hack.” Previous DA Paul Howard (uncle of basketball great Dwight Howard) worked to get his name in the news and botched many cases as a direct result including: a high profile murder in which NFL great Ray Lewis obstructed justice (and pled to it) to the case of the police killing of Rayshard Brooks. She has been the antithesis of the previous hack, despite handling high profile cases such as the Trump investigation and the YSL trial.
        5. I am not sure where she is climbing. In more than 40 years here, I have yet to see a Fulton County DA climb above, well, being the Fulton County DA.
        Like I say, I appreciate the great insight you bring from your knowledge and experience. But, man, you seem to have it in for this woman who, it seems to me, is doing incredible work under incredibly stressful conditions in a difficult Georgia political climate.

        • Norskeflamthrower says:

          Thank you! It’s interesting to hear from someone who actually knows something about the current and historical situation in Georgia politics and law. The egg may be dripping somewhere…

        • bmaz says:

          Yeah, I will stick with exactly what I have said and how I have described her. She is an embarrassment to credible prosecutors and their grand jury work. I would have filed a bar complaint on her if I were a GA attorney for Trump.

        • LaMissy! says:

          “As an assistant DA, she brought one of the most high-profile cases in Atlanta history–the school test-cheating scandal. Hardly anyone knew that she was the lead on the case because she kept a low-profile over the multiple years that the case was in the news.”

          I wouldn’t frame this as a feather in Willis’ cap. Those who were punished were lowly classroom teachers, suffering under truly abusive administrators, who paid zero price for their misdeeds. Eight teachers received prison sentences for changing test scores answers at the direction, and in some case under the supervision of administrative personnel.

          It was the height of the absurd idea that standardized test scores were meaningful in any way.

          • bmaz says:

            Lol, I am about as far from “new around here” as humanly possible, but I presume you know that, so good one!

    • SueR says:

      I appreciate your logistics perspective; always start with the end in mind. An easy case that gets to the heart of democracy would Trump’s well documented harassment of Georgia poll workers, Ruby Freeman and her daughter.

      [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

      • bmaz says:

        Nobody credible in criminal law starts “with the end in mind”, they start with actual admissible evidence that meets the putative elements of the crime being investigated. There is far too much of this type of nonsense lately infiltrating this blog comments section. It is like kudzu and Asian carp.

        • AgainBrain says:

          IANAL, so this may well be something obvious I simply do not understand, and if so would appreciate any clarification possible: If finding “actual admissible evidence that meets the putative elements of the crime being investigated” isn’t starting “with the end in mind”, then what does “the end in mind” mean?

          • bmaz says:

            The end means nothing until you collect the evidence. Follow the evidence, and that which is actually admissible, in a real court. Follow it where it goes, not where popular opinion thinks it “should” go.

    • bmaz says:

      Dear GWPDA, until you fix your screen name to comply with this site’s stated requirements as REPEATEDLY politely requested of you, over and over, your comments will not see the light of day. It is not too much to ask of you. Instead, you would rather be an itinerant pain in the ass. We are far too busy for your nonsense.

  2. gknight1 says:

    Maybe get Trump ‘downtown’ on some pretext like the search or a deposition or ‘just to talk’. That would make it a more controlled situation.

    I cannot see Trump being arrested in MaL because of the potential for miscommunication or misunderstanding with people with guns. The Secret Service on one side and the SWAT on the other is not the picture of the year that the authorities want to explain to the public.

    Is there a chance of the authorities calling ahead and asking Trump to turn himself in?

    I didn’t think so.

    I do not necessarily want to see a Trump perp walk. I do want the Mothers Of All Warrants to go out at once.

    I am glad that I am not a lawyer.

    • bmaz says:

      I don’t think any of the formal arrest scenarios should or will play out. Charge him and serve an order to surrender, same as was done with Steve Bannon. Doubt Jack Smith wants any part of such a publicity show, I sure as heck would not if I were him. No they would not call ahead, they would issue an order to self surrender on or before a given date where he would be arrested and likely released the the same day. Make it as smooth and easy as possible. But Marcy is right, it well might be a skeleton place holder charging set that would be superseded later.

      • earlofhuntingdon says:

        The paddy wagon would need to be big enough for all the Secret Service agents. Plus, more space blankets.

        • Bombay Troubadour says:

          It would seem that from the secret service J6 missing texts, and planned trail-hiding, the SS agency really earned its name. What some of the SS agents knew prior, and how many were ready to switch sides on J6, we may never know.

      • PJB2point0 says:

        The idea that the SC could charge Trump on the docs case, which always seemed an order of magnitude more contained and easier to investigate, while continuing to investigate 1/6 related malfeasance and possibly obtaining superseding indictment has always seemed so obvious to me that I am surprised Marcy and you are even posting about it as a potential course of action. Are there adverse consequences to that strategy I am too dense to have considered?

        • bmaz says:

          No, your consideration is just fine. I have no idea what Smith is thinking as to strategy. Not positive the documents charges are as clear cut as a lot of folks do, but if there are to be charges on that, I’d expect them to be in DC where the docs were originally illegally purloined. Obviously, any J6 charges against Trump and his inner circle would be in DC. As a general rule, it is not a good look for a prosecutor to piecemeal out charges in a single jurisdiction/forum, but it does sometimes happen. So, what is Smith thinking…who knows?

        • emptywheel says:

          It is more contained, but as I said, they don’t seem to think they have all the docs back yet. They’d like to do that before they charge, if they do. They also still need to get Corcoran’s crime-fraud testimony.

          But it’s not entirely contained. Both Boris Epshteyn and Molly Michael are key players in both investigations. And people like Alex Cannon (possibly even Eric Herschmann) are useful witnesses on the docs case but more exposed on the Jan6 obstruction and financial stuff.

          So those four key parts do overlap, even ignoring Christina Bobb’s potential exposure on Jan6.

      • Frank Anon says:

        I would assume there would have to be an arraignment on any charge, is it possible to be done without the defendant present? And what if the defendant chose not to appear, what would the court be obligated to do? I would assume they would have to arrest him, yes?

        • bmaz says:

          Yes, that’s right. If done right, you show up at court, get “arrested”, processed and immediately taken into court for IA/Arraignment. It can be done pretty quickly. If a no show, then you get the unfriendly arrest. A no show on an order to appear would be a really bad thing for eventual release conditions though, that would be really stupid of Trump.

          • Bobster33 says:

            Are you kidding me?? Donald Trump would put on his freshest orange paint, tightest girdle, and thickest rug for the biggest arrest spectacle in history. Lights, cameras and security would be HUGE, like a WWE event.

  3. wasD4v1d says:

    It strikes me that complicating the lives and imperiling the business prospects of Trump’s once and future lawyers may have benefits of its own, a preemptive move anyone thinking of lawyering for Trump would need to consider seriously. It doesn’t appear Smith would be at all hesitant to issue a warrant – but his boss would certainly weigh implications beyond Smith’s remit.

    • timbozone says:

      Uh, I suspect that there are many more warrants that haven’t even been requested by Smith that he might well have good evidence in hand to pursue. Smith isn’t going to upset the Executive branch or the Judiciary needlessly with a barrage of tangential warrants if he can help it. He ain’t Ken Starr.

      • wasD4v1d says:

        Agreed – I don’t think any of these multifront moves are mutually exclusive. And Garland may well have taken Smith entirely off the leash.

  4. Patrick Carty says:

    On the other hand, fill his plane with enough fuel to get to Saudi Arabia and be done with him. Then seize every asset he has left in the West. Send his kids over too. Once he has no more political leverage to help the Saudis they can send them all to Russia.

  5. BruceF says:

    Perhaps it would be fitting if he was retained for a while, given a shiny metal blanket, allowed to sleep on a bench or floor and separated from his family indefinitely…you know, treated just like he treated children fleeing danger in hopes of a better life!

    [Moderator’s Note: Avoid making comments which could be construed as threats requiring follow-up by federal agencies. /~Rayne]

            • BruceF says:

              No, it reads as if he had just read a blog that covered Thomas Homan’s comments about doing his job as head of ICE. Easy for some folks to dismiss separating families and making children seeking a safe place to live sleep on floors, in cages, with metal blankets!

              • bmaz says:

                That is absolute garbage, and irrelevant to the subject at hand. I trust you are smart enough to know that and are just infusing this post’s comment section with something completely irrelevant because you can.

              • earlofhuntingdon says:

                Straw man arguments not germane to a rational decision about whether to indict and charge TFG. The Biden administration is not the Trump or DeSantis administration.

              • Rayne says:

                This is a democracy yet, and this site strives to keep that democracy. This is supposed to be a nation of laws, not men. U.S. law prescribes the punitive measures to which a perp can be sentenced if found guilty, and that’s what should apply here.

                That ICE operates inappropriately is a wholly separate issue which should not be conflated with the topic of this post. Get on topic or find the exit.

            • Bombay Troubadour says:

              Maybe the new administration of New College of Florida, will change its name to the Old College of Florida………and change curriculum to mandatory reprogrammimg adult education for any remaining Dems at the Villages.

          • Richard Turnbull says:

            Arguably what’s “sick” is that Trump will likely never encounter a small part of the devastating suffering his orders inflicted on small children as part of his sadopopulism.

            • Bombay Troubadour says:

              Agree, and of the many current sick things I struggle with is that he is still a leading candidate. What level of mind-poisoning has occurred that after J6, classified docs, find me 11,000 votes, and now Dominion discovery, (and pick any 1 week of his previous presidency tweets), to be the GOP primary front-runner?

      • David F. Snyder says:

        What’s wrong with him? He’s angry.

        Arjuna said: What is it that drives a man to commit evil, however reluctantly, as though propelled by force?

        The Lord said: It is desire, it is anger, which springs from the force of rajas, the great devourer, the great evil: know that that is the enemy here. This world is clouded by it as fire by smoke, as a mirror by dust, as an embryo by the caul.

        • earlofhuntingdon says:

          What’s wrong with anger? From your quote, I would say that it drives people to commit evil.

          • Richard Turnbull says:

            Anger simpliciter has to be distinguished from justified moral outrage. This is first year university philosophy of ethics material, not rocket surgery!

            • bmaz says:

              I’m sorry, neither “moral outrage” nor “anger” should ever be the basis for criminal prosecution. Are you in favor of lynching too?

              • LeeNLP941 says:

                Excellent riposte. The statue of justice wears a blindfold for a reason- without fear and without favor. Even justified anger – no, especially justified anger – leads straight to lynch mobs. And the truly bad guys will always find a way to come out on top, while the innocent suffer. The rule of law as it is defined in this country may be idealistic, but it’s an ideal that must be seriously aimed for at all times, and especially when there is widespread justified anger.

                • bmaz says:

                  None of the Trump and J6 aftermath will be dealt with and resolved the way everybody would like. There is too much, and too much of it is less clear than people on the internet, including here, think. I do not know how it ends up, but would like it to be orderly and in favor of the rule of law and not by mobs and cheap polling mentality.

                • Bombay Troubadour says:

                  Between a 6-3 scotus and Ginni Thomas, the Statue of Justice may have one eye open and her thumb on the scale.

          • Richard Turnbull says:

            How do we distinguish “anger” from “justified moral outrage”? Conflating these very different emotive-cognitive states doesn’t make any sense, does it?

  6. Rapier says:

    So take it from me, a nobody. I’m laying down the gauntlet; the DOJ/Special Counsel is not going to bring any charges against Trump.

    • gknight1 says:

      I wonder why one would think that the Special won’t indict Trump. Other than Trump passing away or being certified mentally incompetent… Well, maybe because a former president never has been charged with a felony?

      With all of the excellent research and articles on this site, there seems to be to this layman ample evidence to get to a conviction on a multitude of charges. And Garland has said that he would pursue the evidence and do what is necessary.

      As to the stolen documents…Garland did not seem to object to the presentation of steps taken up to the search. Also, the photo of the documents displayed on the floor seemed to be some sort of public relations effort to signal where the DOJ is going with respect to Trump.

      Mr. Smith’s appointment was said to be partially because of ‘extraordinary circumstances’.

      If Garland didn’t put the stop to Durham’s sad efforts, then why would Garland stop Smith’s?

      People have pled guilty of obstruction and conspiracy related to the attempted insurrection on J6. Obstruction of Congress was central to Trump’s plan…and there seem to be receipts.
      A key is that the Proud Boys were at the Capitol before the end of Trump’s speech.

      I wonder if the DOJ has all the Signals and if Meadows will flip. Stone and Jones and those lawyers and Rudy and Bannon…someone will flip.

      Say it’s so.

      • FL Resister says:

        Cheer up. Odds are in favor of Trump entering the dustbin in whatever form. IANAL but I have an MS in public administration, and the easy case against Trump is the documents one. Funny had he just turned over everything when repeatedly asked to and finally searched, the easiest case against him would not exist.
        That’s besides the Georgia attempt to get him 11 thousand votes, one more than he needs… the fake electorate scheme, misuse of donations, tax fraud, wait there’s more lol.
        Not only is there clear evidence of Trump’s criminality in multiple places, who among Trump’s rogue’s gallery is willing to spend any more time in jail than necessary. And this guy is the front runner for the Republican presidential selection. So you fret.
        The right wing disinformation spokespeople appear surreal still saying the same things, going through the same motions, even though they are increasingly exposed as frauds and liars, as if nothing has changed.
        As far as arrest, I am for meat cleaver charge.
        Meaning hit him with the worst first, even if it takes a little longer.

      • Richard Turnbull says:

        Exactly, Jack Smith has worked on war crimes prosecutions, why would he shrink from indicting someone like Trump? Trump is now a private citizen. Likely much of the difficulties arise from what Marcy has identified several times: so many lawyers around Trump make the privilege issues especially tricky to handle properly.

        • timbozone says:

          We don’t know one way or the other. Presumably Smith’s not going to balk if there’s good evidence and a clear case for charges and conviction of Trump. On the other hand, we’ve seen lots of balking in the past when it comes to Trump and accountability, up to and including wonky Federal judge stepping in to protect Trump, etc. Hopefully, Garland knows who should be in the helm here and has made the right decision.

    • bmaz says:


      Adding that pre-trial release can continue until trial and formal sentencing. Longer if maintained for appeal.

      • joel fisher says:

        He’s certain to get pre-trial release and just as certain–because that’s what he does-to violate whatever conditions are laid down. I can think of two that are certain to be violated: 1) Remain law abiding and 2) Travel restriction. He seems to me to spend a lot of time defrauding people and obstructing justice. It’d be hard for him to just give that up. And even if the only limit on travel is he has to tell the Court about it, he’ll violate that. Be interesting to see SCOTUS rule on bail conditions.

          • joel fisher says:

            They-and the Court of Appeals–will accept his filings and he almost never fails to appeal. Traveling up the road from the trial court will take time. 22 months until Inauguration Day.

            • bmaz says:

              Does Election Day or Inauguration Day present a legitimate time limit on criminal prosecutions? Should it be about such political parameters? No.

        • Peterr says:

          Surrendering his passport(s) would also seem to be a likely travel condition laid down in any set of hypothetical pre-trial release conditions.

          • earthworm says:

            two different countries, two different cases;
            but can one construct any insights between djt and the arrest, conviction, and sentencing of nicolas sarkozy, former president of france, on charges of corruption?

          • Ginevra diBenci says:

            My first thought, Peterr. But then I inferred from bmaz’s comments, perhaps incorrectly, that passports would not be demanded–that that would be a step too far (or too “aggressive,” as Steve D’Antuono might insist).

            Would Trump be allowed to keep passports if as EW speculates he is arrested for document-related crimes/obstruction?

            • bmaz says:

              He may, or may not, have to surrender any passport(s), but out of country travel could be restricted by the court even without that. That said, this discussion is getting WAY over the skis of the facts and circumstances as we know them.

          • xy xy says:

            Since he has his own jet, why does he have to worry about a passport if there’s a nation that he makes arrangements with to go there?
            And if his jet has capability to refuel in-flight, then he can get to S.A.

            • bmaz says:

              There is no reason to believe Trump would flee, nor would consider it. His plane is “not” capable of air to air refueling.

  7. earlofhuntingdon says:

    The real tragedy in all this is that this post reuses the picture from the immediately preceding post. Are they connected? I have to read the titles to tell them apart. It’s so confusing I’m losing my mind!

    It’s nothing of the sort, however, so I’ll have another cuppa and enjoy Marcy’s wit, intelligence, and hard work.

      • earlofhuntingdon says:

        No oops at all. Your choice of pics is enjoyable, whether whimsy or repetitive. My comment was snark, aimed at an exchange from an earlier post that struck me as a tempest in a teapot.

  8. Dryly 41 says:

    All Americans are entitled to see the TRumpster Frog Marched out with his handcuffs chained to his leg irons for his Perp Walk.

    • gknight1 says:

      There must be 50 ways to arrest ‘The Loser’…

      The problem is all inside your head, they said to me
      It’s not easy, even if taken logically
      this site helps in the struggle to understand
      there must be 50 ways to arrest ‘The Loser’.

      You just slip in the back, Jack…

    • Tech Support says:

      I don’t know if abusive law enforcement acting with impunity is on your list of concerns, but it is on mine. At the end of the day perp walks are just one more form of arbitrary, extrajudicial punishment.

      Also, given how the warrant served on MaL directly inspired an attack on the Cincinnati FBI office by a trumpist, reactionary wingnut, maybe there are practical reasons for avoiding spectacle.

      What Americans are entitled to is an even-handed application of the law, and I don’t think ritual public humiliation should be baked into the process.

      • Ginevra diBenci says:

        I agree, Tech Support. Especially given Rudy Giuliani’s prominent role in making “perp walks” a media opportunity, my thought is that here we *can* go high where they have gone low.

  9. Rollo T says:

    Speculating: Someone notifies Trump he’s about to be arrested and he flees the country.

    • Richard Turnbull says:

      If he tries that there are any number of people around him — including Secret Service staff — who are really asking for serious, immediate legal consequences. Is it clear that they would actually risk that?

      • timbozone says:

        Based on the Jan 6 related events and subsequent lost records from USSS in violation of the law and agency policy? Maybe.

    • DaveC2022 says:

      We could only hope he flees an indictment. I doubt it. A crude life expectancy for Trump is 85 – 90. Unless his money runs out 1st, he’ll be filing delays & continuances as long as possible. Pardons are always possible too. I doubt he would flee until incarceration was imminent which is years down the road at best.

  10. Savage Librarian says:

    Quiet and contained definitely seems the best choice to me. It offers greater opportunity for success. At least, that is how things worked in my own fractal world of precarious encounters. And I’ve had a few.

    One initially was met with a flashy response, but it turned out to be quite counterproductive. I have to agree with bmaz about the damage that preening can do. I hope that it does not invalidate the progress that has been made in other areas.

    Thinking ahead is beneficial to staying on course. Kudos to you, Marcy. And, as you say:

    “But if I were Jack Smith, I’d wait to see the guideposts Trump’s own appointees put on the application before I charged it. I have also long said that certain steps may be contingent on the Proud Boy trial, which seems like it’ll go on forever.”

    I think Brandi Buchman estimated that the Proud Boy trial might go until April 9. It might be purely coincidental, but I wonder if this has anything to do with Biden holding off on his announcement about running for re-election.

  11. Randy Baker says:

    Given Trump’s capacity to flee and his well documented mendacity and lawlessness, your reflections on the mechanics of arresting him and securing him post arrest are interesting and wholly apposite. Rich arrestees like Madoff and Bankman-Fried suggested similar problems for the government, and assuming equal treatment under the law — always a big if for rich and powerful white guys — measures taken to secure their appearances, such as home confinement, likely provide some guide into what might be needed in the case of Trump. Of course, the would be Fuhrer poses risks of violence, etc., to which you allude, considerably larger than those posed by the other fellows– and thus several relatively unique problems.

    • bmaz says:

      Lol, too many people in this comment section are getting wild eyed and off their rockers. Trump is not particularly any flight risk. No he should not be detained, even home detention. No he will not even be required to have an ankle monitor. “Risk of violence”?? To who? Is Trump going to hit somebody with a golf club?

      Seriously, folks here need to calm down and get a grip. Pre-trial release is not contemplated to be punitive, no matter how much folks may wish it to be so.

      • Tech Support says:

        Do you think prosecutors would petition to have him surrender his passport as part of the conditions?

        My expectation is that he wouldn’t flee anyway because it would be a public display of weakness, and because he seems to have a deep-seated belief (supported by history) that he will always escape serious consequences. I think though that if I were the prosecution I’d want to create at least some nominal barrier to him leaving the country.

        • Rugger_9 says:

          Surrendering a passport is a routine release condition, but as alluded to by EW’s post there is also the MAGA army to consider. So, if I were the prosecutor I would either push for a gag order against communicating with his minions (perhaps in exchange to expedited hearing dates) or find a way to hold him personally liable for anything they do on his behalf. The latter would need to pass Constitutional muster which is doubtful at best if not impossible. Stuff like proving the connections would be difficult. Is there anything like this in other prosecutions involving organized crime and drug lords that could be used as precedent?

          We have to talk about the defendant as a person, not as an idea.

              • whocansay says:

                Agnew famously pleaded nolo contendere (no contest) to one felony charge, tax evasion, for the year 1967, and resigned quietly to avoid charges for the decades of corruption in Baltimore County Maryland. [wikipedia]

                I vaguely remember the famous line from his press whipping speech:

                Said Agnew: “In the United States today, we have more than our share of the nattering nabobs of negativism. They have formed their own 4-H Club — the ‘hopeless, hysterical hypochondriacs of history.’”

                He was alliterate.

                Good times.

                Rachel Maddow’s podcast series on the Agnew scandals was excellent.

                • Knowatall says:

                  Ah, the n-words of yesteryear. And yet, we have so many nattering nabobs of negativism to this day.

      • Katherine Williams says:

        How about the risk of inciting violence? He’s done so many times before, with Jan 6 being the most well known. His incitement could and well might cause deaths. He should have a gag order.

        • Ginevra diBenci says:

          I’m sure Jack Smith is also considering Musk’s open invitation for Trump to return to Twitter, along with Trump’s contractual obligations to his own platform, which (being Trump) he would dishonor in a nanosecond once he perceived it serving his interest rather than Elon’s.

            • Ginevra diBenci says:

              Sorry, I probably should have said Garland. Given what is public record (especially after last week’s story about ostensible disagreement between DOJ and DC FBI on whether to search Mar-a-Lago), it seems that DOJ is very much concerned with potential for the kinds of incitement that Katherine Williams brought up.

              Trump’s ability to exploit social media would certainly factor in to that thinking, wouldn’t it?

        • emptywheel says:

          Let’s assume my scenario is correct, and DOJ would charge Trump for a crime-scene charge first. They could spin the wheel (thinking that either Beryl Howell, who has presided over this GJ, or James Boasberg, the incoming CJ, might assign to themselves), or they could associate a Trump case with an existing one: Proud Boys (Tim Kelly, and out of his league Trump appointee), Amit MEhta (whom I’d choose), or for reasons I won’t lay out, Amy Berman Jackson.

          ABJ tends to favor gags.

      • posaune says:

        One thing they would have to consider about his arrest is his current health condition. I would guess that RJT is on multiple medications, actually needs 3-shift home health aides at this point and a lot of assistance with ADL. It would be difficult to move him around with all the medical attention he likely needs.

  12. P J Evans says:

    I suspect the only way he could flee the country would be with help from friends – like his golf buddies in KSA. He can’t afford the fuel for that jet he claims to own, most of “his” real property belongs to others, and his bank accounts are low. His income is from his grifting and his licensing agreements.

    • Richard Turnbull says:

      If someone had started in on an attempt to write about the major events in Trump’s presidency and its aftermath, they could never have invent so many outrageous acts by Trump and his reckless enablers, much less a seditious insurrection that has produced trials, convictions, and long prison sentences. Or to the extent they might have hit on some of it, most observers would have dismissed it as some kind of dystopian fantasy!

      • Vinnie Gambone says:

        If Trump loses the Primary will his supporters say it was was rigged? If he loses the General will we Insurrection II,- the sequel. Although it won’t as planned as the first insurrection was alleged to be, these people are nuts, some of them can be violent, and many already feel and act like rats trapped in a corner. I hope most Americans (and donors) have had enough of Trump world. “I am your Warrior. I am your retribution.”

        The pipe bomber is still out there. All the dudes with AR15’s got to leave with them on Jan 6. Do you think they’ve had a change of heart?
        God help us.

    • earlofhuntingdon says:

      I think we’d all be surprised where such a law abiding citizen as TFG keeps his money. There’s also that he structured his political fundraising to keep it in entities that allow him to use the funds for personal expenses. They can cover more than his legal bills.

    • Bay State Librul says:


      I think you underestimate the evilness of Trump.
      He could do a number of things that we have not even thought about.
      Be careful, be very careful

      • earlofhuntingdon says:

        I’m pretty sure bmaz has a good bead on who and what TFG is. Yes, he has no restraint, he’s vicious, and is vindictive as hell. He’s not unique in those attributes, even though he would like us all to think he is.

  13. Chris papageorgiou says:

    Crime and punishment.
    The writer is scared but not suffering from scriptophobia.
    The legal system must act without fear or favor, USAG Merrick Garland said so and I did not detect any fear while he was speaking.

  14. tinao says:

    Hmmm, good question! Without having read anything yet, I would say prove beyond a shadow of a doubt he broke the law. How’s that for us slow legal folks?

  15. tinao says:

    Just a realistic thought of it it has me dancing around the house to a classic Spencer Davis Group song!

  16. I Never Lie and am Always Right says:

    My concern about any arrest is that Trump could balk at self-surrender, even though Trump’s sane attorneys would likely counsel him to do so. Absent self-surrender, there could be complications, due to deliberate efforts by the Magasphere to create a spectacle. Roger Stone would likely be in favor of such efforts.

    • bmaz says:

      Naw, if he does not surrender as demanded by the court, then he gets rolled up. But the government should go through the right way before making the spectacle.

  17. bmaz says:

    You remain full of shit. You flit back and forth with your bullshit and are doing a disservice to this commentary section. Give it a rest, or you will be given one. Most of the readers here do not know the ins and out of the UCEA and may be prone to believe your google fueled random horse manure. I do, and you are completely full of it. One last warning, give it a rest.

  18. Paulka says:

    Not that I personally envision Trump ever being arrested, but if he were, how would a gag order work given he is running for president and has a history of, let’s say, less than kind comments directed at judges and prosecutors and LE investigating/trying him? What conditions could be attached and what ramifications could be enforced.

    Personally, I think this whole discussion is completely theoretical.

    • Ginevra diBenci says:

      Not so much theoretical, Paulka, as hypothetical. Which is how we humans prepare for eventualities.

  19. timbozone says:

    OT: article on how DHS and USSS have regularly been breaking their own rules and the law when it comes to monitoring domestic cellphone traffic.

    [FYI — link edited to remove tracking. In the future, strip out the question mark and everything after it in links from The Register before sharing. They’re going to learn enough about the folks who click through from this site as it is. /~Rayne]

  20. Bobby Gladd says:

    “I-Will-Be-Your Retribution” Trump is now bleating his standard MAGA Rally rant at CPAC. Camera sweep periodically pans past lots of empty seats. What a joke.

    • P J Evans says:

      Some of the photos I’ve seen from the back of the hall show it’s much less than half full for some of the speakers.

  21. khollenCA says:

    Re: “certain steps may be contingent on the Proud Boy trial,” I’ve been trying to follow the trial; it is mostly going over my head, but due to the excellent reporting here and by Roger Parloff and Brandi Buchman on Twitter, I think I understand a little bit, at least. Enough to find AUSA Kenerson’s cross-examination of Jeremy Bertino on February 28th pretty interesting! Thought immediately of Dr. Wheeler’s articles on the government’s “tool” theory.

    Parloff’s thread from the end of that day archived here:

    From the transcript that Parloff posted on his March 2nd live-tweet thread (archived at

    AUSA KENERSON: Were you aware of a plan?
    JEREMY BERTINO: No, I was not.
    K: How about an objective?
    B: No, I was not.
    K: Did you have an understanding of the objective?
    B: Of the objective?
    K: Objective, yes.
    B: Yes.
    K: What was your objective, as far as your understanding?
    B: Stop Joe Biden from being certified as the President of the United States.

    (P.S. I am thinking of Ms. Buchman and her family.)

    • emptywheel says:

      If all goes well we will be graced by Ms. Buchman tomorrow. I think she’s anxious to get back to the structure of the trial.

  22. Max404Droid says:

    Today in the WaPo on Trump’s “victory” in the “Straw poll”:

    Speaking with reporters before the speech, Trump said he would stay in the race even if he is indicted in ongoing criminal investigations of his handling of presidential documents and his role in instigating the Jan. 6, 2021, attack on the U.S. Capitol.

    Indictment and arrest are exactly what Trump wants. It will position him in the best possible way with his supporters. It will give him the best grifting possibilities possible. It will solidify his position as the ultimate “fuck you” for a cohort that lives by that mantra. He will bring down the country if he can. This is his best chance to take it on and win, he calculates.

    This is the chance he has been dreaming of.

    • Konny_2022 says:

      Whatever. Such are not the considerations law enforcement has to make.

      Just to take it a bit further: If Trump will not be indicted, he will tell his base: “See, no indictment. I’m innocent like I’ve told you all the time.”

      So whatever again: Trump’s supposed or actual dreams don’t matter save for speculations in the media.

    • earlofhuntingdon says:

      Trump’s defining struggle has always been the gap between his dreams and hard reality. He won’t want such things much when he actually has to deal with them.

  23. Kevin P says:

    This flies against age-old wisdom: if you swing at the King, best not miss*.

    (*) or something like that.

    • earlofhuntingdon says:

      TFG is not a king. He never was and never will be a king. He is a probable lifelong felon with the gift of the gab.

      • Rayne says:

        TFG isn’t a king but a mobster; in this you’re right he’s a lifelong criminal. But he’s an underboss if not a boss; like a king, you had better be sure when taking out the boss/underboss because the regime will come for you if you don’t take out its leader completely.

        In this respect, Kevin P and others who’ve referenced or paraphrased this quote by Ralph Waldo Emerson to Oliver Wendell Holmes are correct: “I read your piece on Plato. Holmes, when you strike at a king, you must kill him.”

  24. atriana smith says:

    In answer to just the headline:
    Set up a fake Pulitzer Prize Committee in DC and tell tfg he’s a nominee and the committee needs to interview him.

    OK, that sounds like a bad movie plot but imagine the hilarity that’d ensue.

    Anyway, love the (serious) work being done here!

  25. Alan_OrbitalMechanic says:

    How do you arrest a rich man — if not quite a billionaire — with access to several planes and his own MAGA army?

    The scenario that is being suggested here is what I would consider to be an optimal outcome. Trump flee the country?

    The domestic Trump “empire” such as it is would likely collapse.

    Every legal imbroglio that he is involved in would be made much worse. He would be hard pressed not to have assets seized.

    The MAGA crowd would want to riot, but where and who will lead them? Don Jr? MTG? Ha ha. And if they did, law enforcement (even those on the MAGA side) would be ready for them. They have learned that white people making angry mayonnaise noises can do damage. We will see how energized they are when Trump has lost all media access.

    • Tom-1812 says:

      I’m inclined to think that justice should be done, and be seen to be done, right on America’s own home turf. By letting Donald Trump use the Greased Pig Option, by which he manages to wriggle out of the grasp of the DOJ and escape overseas, he not only becomes someone else’s problem but it sends the wrong message to the MAGA crowd and to U.S. allies. The only way to deal with this “unprecedented” situation regarding Donald Trump is through the American judicial system, so that the proper precedent is established not only for the law books but for the history books.

    • Rayne says:

      IMO, the optimal presentation would be that Trump is a loser, whether he is arrested/arraigned/released neatly, or flees the country, or some variation in between.

      CPAC this weekend in addition to other increasing slights in the right-wing ecosphere suggest that Trump is losing his grip on the right-wing. The authoritarian personalities who have followed him in lockstep want an authority figure, but an authority figure is a winner and not an obvious criminal or a chickenshit who runs away. Trump’s already tainted because he didn’t win 2020, and those who cling to the Big Lie are flagging because there’s no there there to support them. If in being arrested and arraigned he looks more like a loser, he’s less of an authority figure.

      I’d like to see a postal inspector dressed like a U.S. postal person attempt to deliver a package to Mar-a-Lago which requires TFG’s signature, and then have them make the arrest. Have backup arrive from the water just as USPIS personnel arrived by water to arrest Steve Bannon on Chinese businessman fugitive Guo Wengui’s yacht.

      • Marinela says:

        I don’t see Trump leaving the US. The US is the only country on earth where he has relevance, and small donors that are willing to donate their hard earned money to him. What would he do if he leaves? No country on earth would want to take on to support a parasite like him. It is going to be expansive, and politically explosive. Israel is the only country I can think of that may align and agree to give him protection in exchange for the foreign policies he gifted them, but politically I don’t see Israel risking a confrontation with the US government.

        • Just Some Guy says:

          Makes me wonder what’s going on in Brazil to the effect that we have Bolsonaro still wandering around Florida!

  26. esqTJE@23 says:

    You think Trump would comply with a ‘gag order?’ I’d think Trump is well-enough connected that he could easily find non-court-reachable agents to spout vitriol on his behalf. And I don’t see any threat of contempt forcing him to keep his personal lips sealed, either way. Gag orders and contempt-of-court charges are things that only LOSERS, SUCKERS — and, you know, war heros that get captured — those type of people, have to worry about. Trump? I don’t see him being stifled by gag orders or contempt charges. He is ABOVE all of that. Can anything chill his speech? Is there prior evidence of this?…

    And it’s the loud mouth publicity that Trump/ers would spout about the deep state, the corrupt FBI etc. that would stir up the Trump base, that Garland and Smith must weigh when considering any path for arrest or detention/detention hearing of Trump. Fringe Trump supporters have extorted Ga. election workers, on camera, by foretelling (threatening?) violence; attacked an FBI field office with a staple gun & assault weapon; left flabbergastingly outrageous voice messages on elected officials or election workers’ voice mails; cracked the skull with a hammer, of a political opponent’s spouse after breaking into the out-of-town-lawmaker’s home; AND assaulted and maimed police officers while trying to get into our nation’s capital building where several defecated on the floor. Has Trump ever distanced himself or decried as unlawful, these actions of his fringe followers? Perhaps I’m mistaken, but I’m unaware of any instances of this.

    No, Trump himself won’t be wielding a 5- or 7- iron to bludgeon his enemies with. He’ll rely on the less-stable members of his base to do this for him, or threaten to do so. Inspired by the highly publicized lies that Trump or his agents will tell, it’s the publicists for Kanye West, or ‘Ricky Revolutionaries’ inspired by a court approved search of Trump’s home, or individual nut balls imbibing hours and hours of Faux News coverage, whose violent acts or threats of them, that Garland, Smith and other deciders must weigh when considering any form of a ‘public arrest’ or ‘detention hearing.’

    While Marcy provides a bemusing thought experiment, I’m betting an under-seal indictment and quiet, behind-the-scenes arrangements for a stealth ‘informal intake’ / ‘detention hearing,’ devised with a non-publicity-seeking, honorable lawyer on Trump’s team, may be the more likely scenario. And, I’m betting neither would not be undertaken until it is absolutely certain that Trump WILL BE TRIED for his mis-deeds. I also think a well-timed Gerald-Ford-justified pardon by Biden could be issued in an attempt to quell the masses.

    I can’t picture any scenario where the threat to public safety won’t weigh heavily against any public or semi-public arrest of Trump.Threats of violence work in rule-of-law countries too, I believe. (Anyone old enough to recall the attempts in the Northeast in the 70s and 80s to hold members of the mob accountable for their murderous misdeeds?…when Guiliani was leading the ‘law-abiders’ / ‘law-enforcers’ team…)

    Trump has shown a raw willingness to threaten the public safety of public officials and private citizens he chooses to target. I don’t think he’d have any qualms about deploying this weapon again.

    As sad as it is, it’s hard for me to see anything other than Trump being given favor, because of fear, despite public declarations to the contrary.

    • earlofhuntingdon says:

      The odds of Trump agreeing to a quiet, consensual, off-camera arrest and arraignment seem quite low. Any consensual act concedes the legitimacy of his opponent’s conduct, something Trump resolutely avoids doing. This has been especially true regarding compliance with the law and legal process.

      Making a public cacophony over every step is much more on brand, and what he thinks he will need to hold onto his supporters and to keep their money coming in.

  27. e.a. foster says:

    How would you arrest a former president?

    That is an interesting guestion, which can cause you to create a number of funny scenarios. It also is a challenge which be distruptive. The article does out line a “play book” for such a thing in this case.

    This would be a first in the U.S.A. and we haven’t seen the arrest of a P.M. in Canada either.

    How to arrest Trump? Quckly, quietly, and politely.

    As much as we may dislike Trump and his actions while in office, we ought not to use this “event” as a reason for revenge. As a democracy, the U.S.A. can set an example of how things ought to be done. Just as it is important to have a peaceful transition of power, it is equally important on how former Presidents are brought to justice. It isn’t so much about Trump as the office he previously held and the respect the position ought to be given.

    • bmaz says:

      Yes, and trust me, there is indeed a quiet and professional way to do it from the government side. At this point, the better question is if Trump is interested in doing it the dignified way or will insist on an outrageous spectacle.

      • e.a. foster says:

        Hopefully he will conduct himself in a dignified manner. Not only is there his previous position to consider, but the Secret service, and arresting officers. He has a teenage son and several young grandchildren who do not need to see him giving the world a “performance” no one will forget.

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