Former President Trump could be indicted and arrested in New York County as early as this week. Weighty constitutional issues arise with charging a former president and a presidential candidate. There are also issues that do not implicate the constitution, but are equally compelling. Like: should Trump smile for a mugshot?
A “mugshot” is a photo that’s taken of a defendant soon after being arrested and processed. Because each state, federal, and local government has its own procedures, there’s a lot of variety in mugshots.
As far as I know, the originator of the “smiling mugshot” press strategy was Tom DeLay. An 11-term Texas congressman, and former majority leader in the House of Representatives, DeLay was charged with money laundering in 2005. He showed up for his mugshot camera-ready, in a suit and tie and a big grin.
Don’t get me wrong: other arrestees smiled for mugshots before Tom DeLay. Columbian drug lord Pablo Escobar did it before him. So did actor Robert Downey Jr. and comedian Artie Lange. But their smiles were improv—unplanned and in the moment. They didn’t go all-in like Tom DeLay.
At the time, DeLay’s mugshot was a newsworthy piece of political judo. Who leans into a mugshot photo and turns it into a promotional headshot? The risks were high: by dressing up and smiling, DeLay risked sending a message: that he didn’t take criminal charges seriously. Generally, only characters like Charles Manson and the Joker are smiley about being prosecuted. In retrospect, though, DeLay’s gambit worked. Nowadays, if you search for his mugshot on google images, you are left with the image of a smiling politician, not a scared arrestee.
But the DeLay effect only works if the defendant is all-in. If Trump is arrested, he must have a suit and tie on. Dark jacket, white shirt, dark tie. Anything less, and it doesn’t work. Imagine if, instead, a politician is arrested at a bar fight and gives a big smile with a black eye and a missing tooth. It doesn’t work at all. It comes off as maniacal. Or, if a politician wearing jailhouse scrubs, smiling for a mugshot doesn’t work either. It radiates false, unwarranted confidence.
Wearing a suit and tie is no problem for Trump. He’s rarely, if ever, seen without a suit and tie. There are no photos of Trump in anything less business-y than golf duds. In a country of increasingly casual dress, Trump is a throwback to when people wore collars and ties, whether they were a presidential candidate or a longshoreman unloading oranges at the docks.
So, Trump will almost certainly appear for his mugshot in his trademark dark suit and solid color (red) tie. He will smile. Bigly.
Danny Cevallos is a legal analyst for NBC and MSNBC and co-founder of the law firm Cevallos & Wong, LLP. He focuses his practice in the areas of state, federal, and territorial criminal defense and civil litigation.