5 Critical Steps to Take Today If You’re Under Federal Investigation After the DOJ Policy Shift

1. Immediately Secure All Communications and Data — Before Any Subpoena Arrives

In my 25 years as a federal prosecutor, I have never seen a policy shift as consequential as the recent Department of Justice directive requiring earlier and more expansive disclosure of evidence under Brady v. Maryland, 373 U.S. 83 (1963). This change means that prosecutors are now under pressure to identify and produce exculpatory and impeachment material far earlier in the investigative process, which directly impacts how you must handle your own data. Do not wait for a subpoena or a grand jury target letter to take action. Immediately preserve all emails, text messages, encrypted chat logs, and even metadata from personal devices, as the government will later demand these under Federal Rule of Criminal Procedure 16(a)(1)(E). Failure to preserve this data can lead to an inference of spoliation, which a federal judge may instruct the jury to consider as evidence of guilt. I advise clients to create a forensically sound copy of all relevant devices through a neutral third-party vendor, not through your own IT department, to avoid any suggestion of tampering. Remember, even a single deleted text message can become the centerpiece of an obstruction charge under 18 U.S.C. § 1519 if the government believes you acted with intent to impede the investigation.

2. Cease All Direct Communication with Potential Witnesses and Co-Targets

One of the most dangerous mistakes I see professionals make during a federal investigation is continuing to communicate with colleagues, subordinates, or business partners who may also be under scrutiny. Under the new DOJ policy, which emphasizes aggressive prosecution of obstruction under 18 U.S.C. § 1512(b), even a casual conversation that could be construed as an attempt to influence testimony can land you in a separate criminal case. I instruct every client to immediately stop all direct, unmonitored contact with anyone who might be a witness or a subject of the investigation, including phone calls, text messages, and social media direct messages. This is not just about avoiding overt witness tampering; it is about eliminating the appearance of coordination that prosecutors will use to build a conspiracy charge under 18 U.S.C. § 371. If you must communicate for legitimate business reasons, do so only through your attorney, with all communications clearly marked as privileged under the attorney-client privilege and the work product doctrine. The DOJ’s new policy explicitly states that it will scrutinize patterns of communication between targets, so even benign messages can be twisted into evidence of a joint scheme.

3. Do Not Accept a Voluntary Interview Without a Proffer Agreement or Formal Representation

Federal agents are trained to request “voluntary” interviews, often by phone or at your home or office, and they will emphasize that you are not under arrest and can end the conversation at any time. Do not believe this is a low-stakes opportunity to “clear things up.” In my experience, the DOJ’s policy shift now requires prosecutors to document all exculpatory statements made during such interviews, but they are under no obligation to tell you that your words are being used to build a case against you. Under the Fifth Amendment, you have an absolute right to remain silent, and I advise all clients to invoke that right politely but firmly by stating, “I will not answer any questions without my attorney present.” If the government wants your cooperation, it must offer a formal proffer agreement under United States v. Mezzanatto, 513 U.S. 196 (1995), which prevents your statements from being used directly against you—but only if you negotiate the terms with counsel. Without such an agreement, everything you say can be used as substantive evidence at trial, and any minor inconsistency can be used for impeachment under Federal Rule of Evidence 613. I have seen too many professionals walk into a “friendly” interview and walk out as the defendant in a multi-count indictment.

4. Retain a Federal Defense Attorney with Grand Jury Experience — Immediately

The clock is ticking from the moment you receive a target letter, a subpoena, or even a vague inquiry from a federal agent. Under the DOJ’s updated policy, the government is now required to disclose certain exculpatory evidence earlier, but this also means that the investigation timeline has accelerated, and you have less time to prepare a defense. I recommend hiring an attorney who has actually tried federal cases and knows the inner workings of the U.S. Attorney’s Office, not just a general practitioner. Your lawyer must immediately intervene to manage the flow of information, including responding to grand jury subpoenas under Federal Rule of Criminal Procedure 17(c), which can be quashed or modified if they are overly broad or burdensome. Additionally, your attorney can begin negotiating pre-indictment resolutions, such as deferred prosecution agreements or declinations, which are far more likely under the new policy if you demonstrate early and genuine cooperation. Do not make the mistake of trying to “save money” by delaying representation; every day without counsel is a day the government builds a stronger case. In my practice, I have seen clients who waited even one week lose the opportunity to negotiate a non-prosecution agreement because the prosecutor had already presented evidence to the grand jury.

5. Prepare a Comprehensive Document Retention and Privilege Log Strategy

Under the new DOJ policy, the government expects earlier production of documents, but you must not produce anything without first creating a detailed privilege log under Federal Rule of Civil Procedure 26(b)(5) if the investigation is civil, or under analogous principles in criminal cases. I advise clients to work with their attorney to identify all potentially responsive documents, then separate them into categories: privileged, work product, and non-privileged. The government will push for broad waivers of privilege, especially under the corporate cooperation guidelines of the Yates Memo, which require disclosure of all relevant facts—but not necessarily privileged communications. Do not fall into the trap of thinking that producing everything will show good faith; instead, it often provides the government with ammunition to argue that you have waived privilege over entire subject matters. Your attorney should also prepare a written preservation letter to all employees, contractors, and third parties who may hold relevant data, putting them on notice of their legal obligation to preserve evidence under 18 U.S.C. § 1512(c). Finally, ensure that your document retention policy is compliant with federal regulations, as the DOJ will scrutinize any automatic deletion protocols that were in place before the investigation began.

If you are under federal investigation, do not wait for the government to make the first move. Contact my office today to schedule a confidential consultation. With over 25 years of experience as a federal prosecutor and now as a defense attorney, I understand the new DOJ policy landscape and can help you navigate the critical early stages of your case. Every day you delay increases the risk of indictment, so call now to protect your rights, your reputation, and your future.