We represent many people who are under investigation for (or who later face) federal criminal charges. In the past week the national news media are having spasms over the fact that the head of the FBI decided to publicly acknowledge that his agents are looking at emails scoured from a laptop sometimes used by the well-named Anthony Weiner, and that these emails may be connected to former Secretary of State Hillary Clinton (who, in case you have not heard it, is running for President).
I am fascinated by how politics intersects with the criminal justice system. Over the past 34 years I have represented people involved in politics who either were charged with or investigated for crimes, both federal crimes and state criminal accusations. While my cases are obviously different from whatever challenges are facing attorneys for Hillary Clinton and others, there are also striking similarities.
One similarity between my cases and the Clinton email investigation is that they both involve federal prosecutors and agents. For the most part, prosecutors working for the United States Department of Justice (or, as we call it, “DOJ”) are well-trained, highly ethical and extraordinarily hard-working federal servants. They usually want to get the right result under the circumstances. However, just as in my cases, the glare of publicity can affect even the best-tempered and ethical public servant. In highly public matters, I have seen far too many prosecutors who are more interested in making a name for themselves by being “hard” on crime than in doing what justice requires. Just look around at the number of people in politics who first made their names as federal prosecutors.
Another similarity is that while we occasionally run into a federal prosecutor who is more interested in his or her future than the justice of the current case, the same is not the situation when we turn to the federal agents who actually investigate the matter. Federal agents are a strong community of like-minded investigators. They are almost uniformly tight-lipped, and are universally unwilling to talk to the press without express permission. They rarely tell tales outside of court and hardly ever gossip to reporters and the like. I know this because sometimes it is many years after a case or investigation is closed before the federal agent I have known for decades even tells me a tidbit of background information about the case we both worked on years earlier.
A third way that the current Clinton squall is similar to our cases also arises from the publicity focused on such matters. I do not know the lawyers who are advising any of the people involved in this investigation, but my guess is that all of them are having a difficult time advising their clients when everything the client says and done is observed by reporters. As I have discussed other times, media focus makes my job more difficult. Some criminal defense lawyers never say anything, while far too many say far too much (to anyone who will listen apparently). Cases like this seem to require input from a criminal defense attorney on what should be said, by whom, and when. However, the criminal defense lawyer is tasked with making sure that his or her client does not get charged or convicted, and his or her reluctance in letting the client make comments runs smack into the client’s need to respond.
Again, I am interested in how the lawyers handle this difficult situation.