Crafting a Winning Case Strategy During a Federal Investigation

When facing a federal investigation, the strategy deployed at the investigative stage is markedly different from post-indictment defense. The primary objective before indictment is to prevent charges from being filed or to limit their scope, whereas post-indictment strategy focuses on defending against specific charges already levied by the government.

At National Security Law Firm, we understand that the investigative phase presents a crucial opportunity to shape the trajectory of a case. Prosecutors hold the power to determine whether federal charges are pursued, and they are reluctant to bring cases they fear they might lose. A well-crafted, consistent, and credible defense strategy can introduce doubt into the prosecution’s case, giving them pause before rushing into an indictment.

Understanding the Role of the Prosecutor in the Investigative Stage

Federal prosecutors are driven by their commitment to securing convictions. As such, their decision to pursue charges is heavily influenced by the Principles of Federal Prosecution, which require that an indictment should only proceed when:

  1. There is sufficient evidence to sustain a conviction.
  2. The prosecution serves a substantial federal interest.
  3. No alternative remedies (civil, administrative) are more appropriate.

The defense’s job during this phase is to convince the prosecutor that the case does not meet these criteria—whether by challenging the sufficiency of the evidence, highlighting weaknesses in the government’s case, or presenting mitigating circumstances that make prosecution unnecessary.

Prosecutors hate losing, and they are unlikely to charge a case where the likelihood of success at trial is uncertain. Our goal is to reinforce that uncertainty by presenting a compelling defense narrative and undermining the government’s case before it gains traction.

Building a Strong Defense Narrative During the Investigation

The key to influencing prosecutorial decisions is creating a narrative that raises questions about the charges under investigation. This requires a clear, consistent, and credible defense strategy that challenges the government’s assumptions and investigative conclusions.

Our approach includes:

  • Conducting an Independent, Thorough Investigation:
    • The defense must not rely solely on the volumes of reports and statements compiled by federal investigators. These documents often omit key details, introduce bias, and fail to provide a complete picture.
    • Our team engages in a comprehensive fact-finding mission, leaving no stone unturned and uncovering evidence that may have been overlooked.
  • Developing a Persuasive Defense Theme:
    • A successful case strategy requires the development of a compelling theme that resonates with prosecutors and stakeholders.
    • Whether the theme focuses on the lack of criminal intent, regulatory compliance efforts, or the presence of exculpatory evidence, it must be airtight and supported by facts.
  • Engaging with Prosecutors Strategically:
    • Direct engagement with prosecutors should be calculated and deliberate. Defense counsel must use these interactions to test the strength of the government’s case and introduce doubts about its merits.
    • If the government is hesitant to disclose key details, that hesitation may indicate weaknesses that can be exploited.

Avoiding Common Pitfalls in the Investigative Stage

Many defense attorneys make the critical mistake of adopting a passive or overly cooperative approach during an investigation. Common missteps include:

  1. Overreliance on Government Reports:
    • The government’s narrative is often one-sided. Defense counsel must challenge the conclusions drawn and seek independent verification of the facts.
  2. Failure to Conduct an Independent Investigation:
    • Some defense attorneys take the easy route—accepting information provided by investigators rather than proactively gathering exculpatory evidence.
    • At National Security Law Firm, we reject this passive approach and aggressively pursue all available facts.
  3. Inadequate Communication with the Prosecutor:
    • Some attorneys hesitate to engage with prosecutors for fear of aggravating them, but strategic communication is key to shaping prosecutorial discretion.
    • A well-timed, fact-based presentation can prevent charges from ever being filed.

The Importance of a Robust Investigation

In high-level corporate defense, large firms understand the power of an independent, in-depth investigation to mitigate the impact of government scrutiny. Yet, this critical approach is often neglected by defense attorneys representing individuals and smaller entities.

A robust investigation is based on the principle that the government should not have a monopoly over the truth. The defense must take control of the narrative by being the first to gather and analyze all relevant facts.

Why this approach works:

  • Proactive Defense Provides Leverage:
    • When defense counsel uncovers new evidence before the government does, it allows for strategic positioning in negotiations and plea discussions.
  • Early Intervention Can Prevent Charges:
    • Demonstrating to prosecutors that the case does not fit within federal prosecutorial guidelines can lead to early declination of charges.
  • Challenging Government Bias:
    • Implicit bias is inherent in federal investigations. Defense counsel must approach each case with a fresh perspective and not be swayed by preconceived notions derived from the government’s findings.

Conclusion: Take Control of the Investigation Before the Government Does

When facing federal scrutiny, it’s critical to understand that the investigative stage is the most opportune time to influence the outcome of a case. At National Security Law Firm, we take a proactive, aggressive approach—ensuring that every fact is scrutinized, every legal avenue is explored, and every opportunity is seized to prevent or minimize charges.

Whether dealing with high-level corporate scrutiny or individual white-collar allegations, the principles remain the same: The first party to gather all the facts and build a compelling strategy will be the most successful.

Learn More About White-Collar Defense

For additional information and resources, including our blog articles featuring our best defense strategies and expert tips, visit our White Collar Investigation and Defense page.

Why National Security Law Firm?

At NSLF, our white-collar defense team is led by Dak Kees, a former U.S. Attorney for the Western District of Arkansas. With extensive experience overseeing high-profile federal cases, Dak brings insider knowledge to your defense. His leadership in white-collar fraud and national security cases gives NSLF a strategic advantage unmatched by other firms.

Having served as the United States Attorney for the Western District of Arkansas, Duane “Dak” Kees brings an unparalleled advantage to defending clients facing federal investigations and charges. A U.S. Attorney is the chief federal prosecutor for their district, appointed by the President and confirmed by the Senate, responsible for overseeing all federal criminal prosecutions and civil litigation within their jurisdiction. Dak’s leadership in this prestigious role provided him with in-depth experience managing complex cases involving white-collar crimes, national security threats, and public corruption. His firsthand knowledge of prosecutorial strategies, evidence priorities, and federal agency operations—gained through collaboration with agencies like the FBI, DOJ, SEC, and IRS—enables him to anticipate government tactics and build highly effective defense strategies. Dak’s reputation and credibility within the legal community, combined with his insider perspective, offer a strategic advantage in negotiations and court proceedings.

At National Security Law Firm, clients benefit from his extensive trial experience and ability to leverage his prosecutorial insights to develop proactive defenses that challenge the government’s case at every turn.

Learn more about Dak Kees and our team here.

Take Action Now

If you or your company are under federal investigation, don’t wait for an indictment—take control of your defense today. Contact the National Security Law Firm for a confidential consultation.

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