Editor’s Note: Elliot Williams is a CNN legal analyst. He is a former deputy assistant attorney general at the Justice Department and is currently a principal at The Raben Group, a public affairs firm. Follow him on Twitter @elliotcwilliams. The views expressed in this commentary are his own. View more opinion on CNN.
Last week, Donald J. Trump, the 45th President of the United States, became the first former President of the United States to face a criminal indictment.
Despite Trump’s claims of selective prosecution, he will, as prosecutors and commentators have said, be treated like any other accused criminal. That won’t work out too badly for Trump, given that the “any other” here refers only to white-collar criminals.
By virtue of his social standing and the crimes of which he is accused, Defendant Trump is already getting the privileged process and kid gloves extended to white-collar defendants.
Like nearly all white-collar defendants, he has never been subjected to a “no-knock” search warrant, in which shouting officers appear at a property in the middle of the night and force their way in with a battering ram (perhaps ending with the defendant getting hauled into the street still in their underpants).
It is a common tactic used in narcotics investigations designed to catch subjects off guard and prevent them from destroying or concealing evidence — ironically, conduct Trump himself may eventually be accused of.
Likewise, news of the coming indictment dropped on a Thursday and spread quickly on a Friday. Luckily for Trump, he wasn’t immediately arrested and detained through the weekend — a routine practice for defendants who cannot afford to post their bond and have the misfortune of getting nabbed as court personnel head home for the weekend.
He had an opportunity to negotiate his surrender and will not be detained before his trial, a means of ensuring a defendant’s appearance. The practice is typically used for defendants deemed to pose either a risk of fleeing the jurisdiction or a danger to their community. Based on the crimes for which he has been charged, not even Trump’s calls to “take our nation back,” warnings about “death & destruction” that could follow, or personal attacks on judges or prosecutors would be sufficient to require his pretrial detention in New York; the state requires release unless a defendant presents a risk of flight to avoid prosecution.
Even a white-collar defendant’s photograph of himself holding a baseball bat next to a prosecutor’s photo might be easily dismissed as indecorous, but free, speech. A member of a street gang who posted the same image would have, in many courts, bought himself a ticket to jail.
It’s not that we should treat white-collar defendants worse, but many other defendants better.
Of course, there are justifiable accommodations that need to be made for a defendant in the full-time protection of the Secret Service. For instance, a former president being handcuffed or kept in a cell outside the presence of his security detail presents safety and even national security concerns.
Still, many protections that the system builds in for white-collar defendants — all revolving around notice of the actions that will be taken against them and opportunity to order their personal affairs — stem from a belief that white-collar crime isn’t all that much of a public threat.
The concept is not new. In 1939, sociologist Edwin Sutherland first coined the term “white-collar crime,” later describing it as “a crime committed by a person of high social status and respectability in the course of his occupation,” a definition that almost apologizes to white-collar criminals for the pesky inconvenience of criminal accusation.
While today our laws typically frame criminality in terms of specific acts committed, old habits die hard. The image of a (usually White, usually wealthy) man in a business suit simply does not conjure what we think of when we hear the words “criminal defendant.” Cufflinks, not handcuffs, seem more natural on his wrists.
White-collar defendants routinely argue that the stigma they may face, as prominent members of society, ought to affect the treatment they receive. Consider Trump’s former attorney Michael Cohen’s argument at his own sentencing that the loss of his law license and business “amount[ ] to an alternative form of punishment,” or former campaign chairman Paul Manafort’s claim that his criminal ordeal “ruined his reputation.” Both play into the notion that white-collar defendants in the system have suffered enough. Judges often agree.
Moreover, the FBI calculated the annual cost of street-level “property” crime — including larceny, burglary and theft — in 2018 to be around $16 billion. This is a rounding error compared to the $426 billion to $1.7 trillion estimated to be the annual cost of white-collar crime. Even if no blood is shed in a misdemeanor white-collar crime, it can come with a profound social cost. Still, guess which defendant is far more likely to sit in jail for months prior to his trial — either because the law requires it, or because he can’t afford to pay to get himself out?
Certainly, not all crimes, or offenders, should be treated the same. Having spent years as both a prosecutor and senior leader at the Justice Department, I am well aware that some conduct poses a far greater public safety threat than others, and should be dealt with aggressively.
However, in deciding on the dignity and latitude extended to defendants throughout the process, society could rethink its notions of what we mean when we think of “threat,” given that not all conduct that destroys our social order is physically violent. We could recognize that most who enter the criminal justice system, white-collar or not, have reputations, livelihoods and families to protect.
We can take prosecutors at their word that Trump will be treated like every other defendant. Given how society coddles white-collar criminals, he should delight in that.