White-Collar Crime

The Waiting Is The Hardest Part -- Part II

This is indefensible, but the government does it every day.

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Soaked businessman standing beside group of people under umbrellasLast week, I talked about what often happens when the government comes knocking at your door. Usually, you end up talking to the nice agent who never uttered the word “lawyer” or its many synonyms, since the law doesn’t actually require that. Then, realizing that you may be in trouble, you go hire a lawyer. The lawyer talks to you, believes that you didn’t actually do what the government thinks you did, and then tries to convince the government of that.

The government, always happy to hear from someone directly, offers to hear from you personally — and even says it will give you immunity for the day! When your lawyer politely declines, the government tells her, hinting at a deep ocean of melancholy just below the surface, that it will just have to move ahead with the case.

Your lawyer tells you this. And you, like most people, assume that the agents will come to your house any day. You tell your spouse, you probably cry a little, and you wait.

And then nothing happens. For days. Weeks. Months. And even, yes, years.

You call your lawyer. You ask her if she has any idea what’s going on with the case. She says that she has no idea and has heard nothing. You ask if it would make sense for her to call the government and ask if, just maybe, the government has decided not to move forward with the case.

That’s when she tells you about poking the bear.

Poking the bear, in the white-collar world, is calling the prosecutor to ask what he’s doing with your client’s case. Sometimes, it is incredibly tempting to do this. Your client has heard nothing in over a year — or even two! (This has happened to me more than once.) Surely the government is done with him by now. Can’t you just… ping them?

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No, you can’t. Because here’s the thing: the last thing you want to do is make the bear remember that you’re there. Maybe the prosecutor got busy with another case. Maybe he changed jobs, and the case got transferred to someone else who hasn’t gotten around to looking at it. Maybe he’s just lazy. It’s impossible to know.

But remember the observer effect — if you try to measure the thing, you change the thing. And so it is with poking the bear. If you poke him, he may come — and that is the last thing your client wants.

So what does this mean? It means that most of the time, you do nothing. Your client continues to worry, and you hope that the government just… fades away.

“Surely,” you may be asking, “the government eventually tells people when it’s done with them. Right?”

Nope. The government rarely gives declination letters to regular people. It is the exception, not the rule.

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And there is absolutely no reason for that. It is literally indefensible. And you can actually prove it: the next time you see a prosecutor, ask him about the last time he’s sent a declination letter. Odds are, he’ll say he never has. Then ask him why, and listen to what he says. I suspect that his response will be roughly as coherent as anything Donald Trump says during a debate.

I’ve heard prosecutors say, “Well, the statute of limitations hasn’t run yet.” But that’s not an answer; if the government knows it’s done with someone, it should tell them that, barring a good reason not to. Last time I checked, Lady Justice didn’t wield the Sword of Damocles.

If the investigation of your client is part of a larger investigation, that’s a good reason. If the government believes that this allegation is only the tip of a larger iceberg — and they’re still drilling into that iceberg — that’s a good reason.

But, in my experience as someone who defends individuals more than icebergs, that’s rarely the case. Most prosecutors don’t send declination letters because it literally never occurs to them. Or it does occur to them, and they just don’t care. They think in terms of crimes, not people.

When the government is done with you, it should have the decency to say so. Until then, as the man said, “Don’t let it kill you baby, don’t let it get to you.” Which, in my experience, is easier said than done.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, D.C., where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, D.C., and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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