Criminal probe may slow response 

Last week, the Obama administration announced a criminal probe into the unfolding disaster in the Gulf. Neither Attorney General Eric Holder nor President Barack Obama pulled punches.

Holder announced an “aggressive” effort to prosecute malefactors “to the fullest extent of the law.” In terms reminiscent of the weeks following the 9/11 terrorist attacks, the president vowed to “bring those responsible to justice on behalf of the victims of this catastrophe.” But the premature pursuit of wrongdoers may chill communication between BP, its employees and the federal government on what should be everyone’s top priority: halting the ongoing oil spill.

Certainly, invective is called for. The severity of the crisis can’t be overstated, in part because its gruesome magnitude is still an open question. But a criminal investigation now, while the spill is ongoing, threatens the crucial effort to regain control of the well.

Federal regulators lack both the equipment and the expertise for this task. They therefore have no choice but to look nervously over the shoulder of the company that created the crisis while BP struggles to resolve it. Any deepwater situation so dire that James Cameron is seriously consulted is one in which every BP insider with a constructive idea needs to offer it up immediately.

The Department of Justice can prosecute both corporate entities themselves — such as BP — and individual employees and officers under a variety of federal statutes including the Clean Water Act and the Migratory Bird Treaty Act. Such statutes make jail time possible for negligent as well as intentional acts, and top managers can be convicted for the acts of subordinates under the “responsible corporate officer doctrine” even if their management practices were above reproach.

That is a lot of potential jail time for a lot of real people, many of whom are likely retaining criminal defense lawyers this week. BP employees and executives need their own lawyers because it isn’t safe for them to consult with BP’s corporate counsel about their individual criminal exposure.

BP had a conflict of interest with its own people as soon as criminal charges came into play. Corporations can’t be jailed, so BP’s likely plea bargain would consist of a combination of fines and federal supervision. The size of such fines can range from nominal to ruinous depending on whether BP “fully cooperates” with prosecutors.

In recent years, the DOJ has regularly pressured corporate defendants to cooperate by “voluntarily” waiving their attorney-client privilege. Once the privilege is waived, anything any employee ever told the corporate counsel becomes part of the public record of the case.

“Make no mistake,” states the website of prominent defense firm Bullivant Houser Bailey, PC, “the Justice Department’s position is that if the corporation wants to avoid criminal prosecution it better be willing to throw its agents and employees under the bus.”

You thought that company lawyer represented you? Too bad.

Unlike lawyers representing BP itself (which has every incentive in the world to contain the spill as quickly as possible), a lawyer representing an individual employee has one simple goal: to keep the client out of jail. He or she is ethically obligated to advise the client to stop talking about the well, the rig, and what might have gone wrong if clamming up will serve that goal. The result could be a breakdown of communication that the country can ill afford.

The political benefit of an immediate criminal probe is obvious. The president has suffered criticism on all sides for being inadequately angry. But the responsible approach to the oil spill is to end it first, and apportion blame later.

Marie Gryphon is a former practicing attorney and a senior fellow at the Manhattan Institute’s Center for Legal Policy.

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