The Washington Post has a great column by Philip Rucker today asking why, if he’s not guilty of anything, President Trump keeps using the language of guilty denial in his public statements. The topic of what to say, and not to say, comes up all the time in every high-profile investigation, and there’s none higher profile than this. Rucker is basing his observations on Trump’s strange Twitter comments about the possibility of his own attorney, Michael Cohen, “Flipping” on him and turning state’s witness.
It’s not so much what Trump says that’s baffling but, rather, that he’s saying it at all.
I’ve represented the subjects of a number of high profile FBI and DOJ investigations. To be clear, “subject” means someone being scrutinized closely for something the government, in the shape of the DOJ, believes could rise to the level of criminal. It doesn’t mean you’ve been formally accused or that they’ve got the goods on you. A subject is under the magnifying glass.
Any competent criminal defense attorney will admonish the subject of a criminal investigation to be absolutely silent on the topic. And I have no doubt Trump’s are advising the same. He’s just ignoring their advice.
Any high profile investigation that draws media attention is a case where anything, and everything, the subject say publicly can and will be held against them. It’s the hardest thing in the world for someone who believes they’ve been wrongfully accused to just stay silent and take the damage to their reputation that comes with leaks and conjecture about the case. But it’s the RIGHT thing to do. And to do that you need a competent, strong person to keep the media at arm’s length while working “off-the-record” to influence the coverage in ways that work to the client’s advantage.
If you ever find yourself in this situation absolutely listen to your lawyer and bite your tongue. If you have people who will advocate for your character and trustworthiness by all means allow them to do so but don’t rise to the bait. First you must get through the crucible of an investigation. Later, when the dust has cleared, is the time to settle scores and rehabilitate your reputation.
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