Joe Biden’s Legal Strategy Is Smart, Even If It’s Politically Clumsy

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. 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?