Criminal Risk
The first challenge: Can your client give honest answers without implicating himself or herself? The answer is not always obvious. You must understand the legal theory of the investigation, its factual scope, and the state of the evidence. Without this context, seemingly innocuous answers could solidify charges against your client.
The first step is simple: Ask the prosecutors what they think. Even if they won’t share everything, most federal prosecutors will try to help you understand how they categorize your client. From the perspective of the Department of Justice (DOJ), everyone is
- a witness—someone with personal knowledge of relevant facts, but whose conduct is not in question;
- a subject—someone whose conduct is within the scope of the investigation, but against whom the government has not yet developed probable cause for charges; or
- a target—a “putative defendant,” or someone the government believes it has probable cause to charge.
Although prosecutors give their view without guarantee of avoiding prosecution and with other caveats, it still has significant value in evaluating risk to your client. Good prosecutors know that it is important to be as forthright as possible. They want to speak to your client, know what you need to hear to become comfortable, and know the defense bar is keeping close tabs on their reputation for integrity for future dealings. Solicit those views from members of the bar with direct experience with your prosecutor; it will help you assess the reliability of the information you are getting.
Of course, you must conduct your own investigation. It should include a thorough debriefing of your client and a review of available documents, with the understanding that your access to documents is likely to be limited to documents in your client’s possession and that the company chooses to make available to you. Often this means you only can see documents to which your client has direct access within the scope of the client’s employment. You must consider your client’s position within the company. Is your client a senior executive or a direct report of a likely target? If so, tread carefully. The government often starts below its main target on the organizational chart and works upward by charging subordinates, creating leverage to secure guilty pleas and cooperation agreements.
Civil Risk
You must also consider any parallel civil enforcement investigations, commonly from DOJ’s Civil Division or the Securities and Exchange Commission. Will your client be forced to admit things that, while not criminal, may create civil liability? Civil consequences can go beyond monetary penalties and injunctive relief. If your client works in a heavily regulated industry, such as at a bank or for an investment advisor, your client may be facing debarment from his or her profession. Government contractors may be banned from future bids. To the extent possible, communicate with civil investigators as well to understand and minimize these risks.
Risks of Refusal
Refusing an interview can be as risky as agreeing to one. Refusals can draw additional scrutiny from prosecutors. Grand jury subpoenas often follow closely after refusals. In a grand jury proceeding, your client will be on the record, under oath, and without counsel in the room—a far more perilous venue than an unrecorded, informal interview with counsel present. If your client invokes his or her Fifth Amendment right not to testify, there could be consequences, such as adverse inferences in civil litigation, termination, loss of advancement and indemnification by the corporation, or loss of coverage under its directors’ & officers’ (D&O) policy, and—in cases involving media attention—poor public relations outcomes that can damage a client’s valuable reputation. Review corporate advancement and indemnification bylaws, any indemnification agreements the company may have with its executives, and the company’s D&O policy, particularly its cooperation requirements. Consider your client’s point in his or her career; early in a career, a client has more incentive to cooperate and avoid professional consequences that can follow from a refusal followed by an invocation than a client on the brink of retirement or who has already left the company. Before refusing an interview request, it is important to assess the potential for these consequences and their significance to your client.
Client Risks
Before agreeing to an interview, your client must understand that his or her answers must be complete and honest. The goal of the interview is to persuade the prosecutor that your client was not involved in any crime (or, at least, not knowingly involved with an intent to defraud). Combativeness, evasion, or outright deception can achieve the opposite, either by convincing the prosecutor that your client is aware of—and concealing—his or her guilt or by creating new liability for making false statements or obstruction of justice. Never agree to an interview until you are convinced your client understands this dynamic, is prepared to be truly cooperative and honest, and can make the right impression.
Protections
If, after consideration of these risks and potential benefits, your client agrees to the interview, you should negotiate for as many legal and procedural protections as possible.
The most common legal protections are proffer agreements and letter immunity agreements (statutory immunity is for another day), with the former far more common than the latter. It is crucial to understand the difference between the two agreements and the basic types of immunity they provide. Generally, there are three distinct types of immunity:
- Use immunity. Truthful statements cannot be used against the client but can be used to develop independent evidence. For example, if your client discloses the existence of a bank account of which the prosecutor was unaware, the government could not use your client’s statements about the bank account but could issue a grand jury subpoena to obtain the records of that account and use those documents against your client.
- Derivative use immunity. Truthful statements can neither be used against the client nor used to develop independent evidence. In the above example, the government would be barred from using bank account records under Kastigar v. United States, 406 U.S. 441 (1972).
- Transactional immunity. The witness receives complete immunity from prosecution for the acts in question. This form of immunity is virtually impossible to secure from the DOJ.
Proffer—or “queen for a day”—agreements provide only use immunity. Letter immunity agreements typically provide use and derivative use immunity but—unsurprisingly—are more difficult to obtain. Unlike letter immunity, proffer agreements do not require high-level DOJ approvals. Furthermore, because derivative use immunity creates a practical roadblock to an investigation, prosecutors are reluctant to provide letter immunity to witnesses until the end of an investigation when all facts are known. By that time, your client may have missed his or her opportunity to influence the government’s narrative and persuade the prosecutor that he or she more closely resembles a witness than a target. Like a blanket refusal, insistence on letter immunity may also spark further scrutiny. Depending on the facts and your client’s position, you can be better off settling for a proffer agreement and its lesser protections for the sake of being viewed as cooperative, rather than insisting on letter immunity and signaling that your client believes he or she has significant criminal exposure.
Procedural protections can be just as important. To the extent you can, craft an interview process with the prosecutor that protects your client. Consider asking that the first meeting take the form of an attorney proffer in which you summarize facts your client knows. Request feedback after this (and every) meeting. Once satisfied that the facts your client knows will not implicate him or her, consider requesting interviews in stages organized topically, ideally with the government providing relevant documents in advance of each session. Your client will be better prepared, and this process will act as a natural brake if unanticipated problems arise. It will also minimize misunderstandings that the government may incorrectly read as dishonesty and give you more opportunity to correct them if they do arise.
Prosecutors will often agree to such processes because they stand to gain from them as well. Your client’s interview is voluntary, so practically speaking, prosecutors may have to agree to such conditions to hear your client’s statements. More importantly, if the prosecutor values your client’s potential testimony, the prosecutor will also want to protect your client from future assaults on his or her credibility by agreeing to a process that minimizes the potential for your client to make inconsistent or false statements that may be attacked on cross at trial.
Conclusion
Deciding whether to cooperate with investigators requires a careful, holistic balancing of risk and reward and a thorough discussion of your client’s priorities. Sensitivity to various risks and awareness of likely consequences resulting from this decision will help you navigate this minefield and, ideally, place your client firmly and finally in the “witness” category.
