For better or worse, the historically unprecedented invitation to the FBI to perform a search of President Joe Biden’s home in Wilmington, Delaware, reveals that Biden and the White House’s responses are being driven by his legal team, not communications or political strategists. That’s the way it should be.
The constant trickle of disclosures about the discovery of classified documents first at this private office and then at his personal residence has subjected Biden’s private lawyers and the White House to scorn from communications and political strategists, while other Democrats are also jumping on the criticism bandwagon. But criminal defense work should be driven by neither communications strategies nor political ones, because neither communications nor politics will keep you out of jail.
A mentor of mine in private practice who had been a federal prosecutor told me he preferred civil litigation over white-collar defense work because in the latter you were always begging the government “please don’t hurt me.” While begging doesn’t always work—the principle is correct.
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The best white-collar defense work is done quietly behind the scenes, and ideally results in nothing happening. That means some of my best work cannot be disclosed, because what clients under a criminal investigation want is to have the whole thing go away.
Unlike in violent crime cases where the fact of the crime is not going away no matter what the defense lawyer says, white-collar lawyers can disappear a charge. That is because the question in violent crime is “Who done it?”, but the question in white-collar cases is more often “Was anything done?”—meaning, was there any crime committed?
That’s precisely what the Biden legal team has been working on. They want to convince the Justice Department that no crime occurred at all. So far they are doing a good job, given the atmosphere of trust they appear to have fostered by their immediate disclosures and invitation to the FBI to conduct a search of the president’s personal residence.
Nor is Attorney General Merrick Garland’s arguably premature appointment of a special counsel in the case a sign that Biden’s legal strategy has failed. While it is likely that Garland’s futile obsession with trying to make DOJ immune from partisan criticism would have caused him to appoint a special counsel no matter what Biden’s team did, that is not a verdict on the legal strategy. No, the verdict on the legal strategy will be whether DOJ and the special counsel ultimately decide there is no evidence upon which to bring criminal charges and decline prosecution.
In white-collar defense a declination is the ultimate victory.
In contrast, the adage in communications strategy of “getting ahead of the story” is dangerous in defending a criminal case. If the Biden team had gone to the press first with their discovery of documents and continued to give updates on every person they spoke to in a quest to appear “transparent,” then they would have embarked on a perilous path. Talking publicly about an active criminal investigation can lead to prosecutors becoming worried that the publicity will interfere with witness recollections—or even serve as witness intimidation, in the worst cases. Speaking early and often also increases the chances of inconsistencies emerging after more facts are learned—inconsistencies which can hurt the credibility of the defense in the eyes of the prosecutors.
Reasonable minds can differ on tactics and decisions by the Biden lawyers—such as whether they should have searched the personal residence earlier, or even whether they should have done a search as soon as the Trump Mar-a-Lago search happened. But such Monday morning quarterbacking doesn’t change the fact that, so far, the Biden team clearly has stayed in the good graces of DOJ.
But no amount of brilliant legal maneuvers and/or brilliant communications efforts would have prevented the GOP’s political weaponization of the case. Predictably, the GOP’s attempts end up all being a projection of Trumpian characteristics onto Biden.
Republican Rep. Mike Turner of Ohio—the likely new head of the House Intelligence Committee—presents a good example, as he speculates that Biden may be a serial hoarder or subject to foreign influence— the latter making use of the usual go-to GOP refrain of “What about Hunter Biden’s laptop”?
Frankly, the GOP would be better off criticizing Biden’s competency at handling documents than speculating about criminal conduct that is likely never to emerge.
Ironically, Bob Bauer, the lead lawyer for the Biden legal team, is inextricably connected to the White House communications strategy because his wife, Anita Dunn, is a senior communications adviser to the Biden White House. Whether that will help or hinder the future strategy remains to be seen.
Oh, one bit of communications advice to the Biden legal and communications teams: Do say you are sorry and will learn from the lessons of the investigation. Say it often, and then let the legal team keep doing what they are doing.
