You’re under investigation for alleged white collar crime. Maybe you’re guilty, maybe not. It doesn’t necessarily matter in terms of how the investigation will proceed.
While prosecutors typically say they have an open mind and everyone deserves a presumption of innocence, don’t necessarily believe it. They’re not investigating you because they think you’re innocent – it’s just a question of whether they believe they’ll be able to sufficiently establish your guilt to get an indictment, and ultimately take you to trial.
It was clearly different in the case of the president – unlike your prosecutor, Special Counsel Robert Mueller acted tabula rasa and was specifically appointed to conduct an investigation until the finish line with no prior look by him at the allegations under consideration. So, likely, Mueller did have an open mind – even though President Donald Trump sees it as if he’s been a target in a Law & Order episode, with a prosecutor conducting a “witch hunt” behaving like a Torquemada out to get him at any cost. Yes, Trump thinks the investigation of him was unfair. No surprise at all. Just like you, literally every single person — guilty or innocent, or even somewhere in between — thinks the investigation of him is unfair.
Guilty or not, your prosecutor will promptly issue grand subpoenas for pretty much every piece of paper you or your corporation have relating to the conduct in question. But not only paper. She will cause you to search virtually everything on your computer or your company’s computers that has remote relevance to the investigation. And don’t think you’ll be able to get a court to limit the production breadth – it almost never happens. Frankly, even if you get some relief from a court, the prosecutor will subpoena the emails of your emailing counterparts and get the material anyway — or worse, get a search warrant and cull through the emails herself, or both.
Beyond that, prosecutors will subpoena others for testimony, banks and accountants are usually the first in line and they virtually never hold back. Or perhaps – and this is a long-time ploy – have investigating agents, with a subpoena in their back pocket, pay that 6 a.m. visit to those whom they think are involved or have key information, so they can be questioned before having even brushed the sleep from their eyes.
In other words, those visited may speak to the agents before that first cup of coffee which may have given them the good sense to call their lawyers and halt the intended interviews. It’s the rare case that witnesses, subjects or even targets, even when represented, simply take the agents’ business cards and send them packing in favor of counsel’s intervention and protection. Your spouse and children are sleeping upstairs or getting ready for work and school, your neighbors are beginning to rouse, and they will wonder why there are government vehicles and obvious agents in your driveway; you do not want to answer their questions or deal with their prying eyes. Terror strikes deep and causes you to say anything or agree to anything to make these agents just leave you alone. It’s a reflexive mistake that all too often has dire consequences – someone who was merely a witness or subject turns themselves into a target or even a defendant by thinking they can fudge the facts, shade the truth, or explain things away.
Now, when you, the target, get wind of these interviews, your first reaction may be to speak to your friends or colleagues – sort of like Trump tried to do. Maybe you’ll even stupidly try to discourage them from participating in future interviews or you will “refresh” their recollections in a way that has an only very casual relationship to the truth. You might even be inclined to delete files, disappear computers and hard drives, delete files and emails, or destroy other possible evidence. Work with the assumption that, when faced with prosecutorial fingers pointed at your friends and colleagues, those “witnesses” will be fearful of becoming codefendants and may ultimately communicate, intentionally or unintentionally, to the agent, or a grand jury, that you tried to obstruct their testimony. Sound familiar?
Either way, guilty or not, you, as a target, have probably lawyered up and because you maintain that you’re innocent (whether you believe it or not) want to tell the prosecutor your account, honestly believing that it will get you off the hook. But your lawyer is not too sure about that – whether or not he thinks you’re guilty, he’s afraid you’ll give a bad impression of the facts, not be believed by the prosecutor, be less than fully forthcoming, and may even lie over some embarrassing event in the episode under scrutiny or to protect someone else. The prosecutor, however, tells your lawyer that either you come in and proffer your innocence by telling your story, or they’re going to indict you. Period.
Still, your lawyer doesn’t want you to. You begin to think that, just as in the case of the president, your lawyer can jerk it around for more than a year as did Rudy Giuliani for the president. Don’t count on it. It won’t happen. True, the prosecutor won’t be able to force you to give an interview or testify before the grand jury that is investigating you. But the decision to indict won’t wait as it did with the president. Remember, that indictment was never going to happen anyway — Mueller knew all along he would never indict the sitting president based on Justice Department policy. Yes, your lawyer will likely be given an opportunity to go in and make an attorney proffer and present your best case to the prosecutor before you are arrested; but it won’t go too far or anywhere if you continue to engage in your criminal conduct or in an obstructionist coverup designed to impair the investigation, or if you keep on talking to anyone and everyone who will listen. You need to stand down. He’s the president, you’re not!
You may even begin to second guess your lawyer’s advice and consider retaining someone else who will walk you into the prosecutor’s office upon your say so. Many thought President Trump would do just that. Shockingly, however, cooler heads prevailed. It’s a dangerous proposition to sit down with the government. After all, they know far more about the facts than you realize, they may already have spoken to witnesses, read your emails, and reviewed your bank records. If any of your lawyer’s fears come true, you can and most likely will find yourself charged, not merely, if at all, with the original crimes under investigation but with obstruction of justice or lying to law enforcement; which is exactly what happened in many of the Mueller prosecutions. The Fifth Amendment and provisions for grants of immunity exist for a reason. Indeed, you are entitled to assert the Fifth Amendment even if you have committed no crime and if the government is knocking on your door, most often you should.
Now, to be sure, there are differences from the Trump investigation that are better for you in the long run. Your lawyer, unlike the president’s, will often be able to have frank conversations with the prosecutor that won’t end up every day in print or on TV. That channel, as it were, will be helpful in getting your story across to the prosecutor. And, generally, you won’t have to worry about reports in the tabloids or even The New York Times every time a witness comes forward and says something bad about you. Frankly, the press isn’t that interested in you, as it is in the president.
Further, you may have the ability for your lawyer to have a joint defense agreement with lawyers for the others involved in the investigation as a way to determine what else is going on in the case, without reading about it in the newspaper. By the way, this goes on all the time without much fanfare, and prosecutors recognize and largely accept its reality.
And fortunately for you, your lawyer will be able to keep you quiet, even if your case is in the public eye. He won’t be afraid to insist that you not give incriminating statements to the press. The president’s lawyers, uniquely, weren’t able to muzzle him. Needless to say, you’re not as big a deal; although you are in the government’s cross-hairs so caution must be the order of the day. This is not a business deal or negotiation. You cannot smooth talk your way out of an indictment. The facts are the facts and the government will uncover them and charge you for distorting, spinning, or conveniently forgetting them.
Listen to your lawyers’ advice– that’s why you retained them, they are the experts now, not you, and they, not the government, are the only ones looking out for your best interests. Think twice and then twice more about speaking with the government and, at a minimum, you will ensure that a difficult situation does not become worse. Even President Trump finally figured that out!
Joel Cohen, a former state and federal prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan LLP and is an adjunct professor at Fordham Law School. He is the author of “Blindfolds Off: Judges on How They Decide. Gerald B. Lefcourt practices criminal defense law in New York City. He is a past president of the National Association of Criminal Lawyers, a founder of the New York State Association of Criminal Defense Lawyers, and founder and past president of the New York Criminal Bar Association.
[Image via Chip Somodevilla/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.