Potential defendants in the BP oil spill prosecutions—and that list could be very long indeed—need to do two things: 1) keep their mouths shut and 2) settle in for a long, hard fight with the feds. This advice comes courtesy of Houston criminal defense attorney Dan Cogdell, of Cogdell & Ardoin, in an Aug. 22 editorial in the Houston Chronicle.

Cogdell’s editorial came out the day before federal prosecutors gather ammunition at the U.S. Coast Guard and the Interior Department's Bureau of Ocean Energy Management, Regulation and Enforcement hearings on the BP disaster. The hearings began today in Houston.

Cogdell, who has represented numerous clients in environmental and white-collar criminal cases, admits that staying silent may seem uncooperative, but it will be “the smartest path.” The federal government is preparing its BP prosecutions across a variety of fronts, including the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act—and they won’t just be seeking slaps on the wrist, Cogdell says.

First, the government will rely on the "Responsible Corporate Officer Doctrine," which allows Clean Water Act violations to be directed at even top corporate officers. Prosecutions under this theory have resulted in convictions of people who were not even at work sites and, in one case, a person not even working for a company but who had "honorary power." The Responsible Corporate Officer Doctrine may be the prosecutor's ticket to tag BP's hierarchical elite while soothing the related political nightmare currently facing the U.S. government.

With such threats looming, employees of BP and other companies involved “must balance the idea of seeing justice done with protecting themselves and their employer. Taking the Fifth at this point may be the least popular but most prudent move,” Cogdell writes.

Defendants have two other things working against them, Cogdell writes. First, to secure a misdemeanor Clean Water Act violation, the government doesn’t have to prove intentional harm. It only needs to show that employees were negligent and failed to provide the proper care to avoid an accident—a much lower bar for prosecutors. Second, “this is not BP's first rodeo,” according to Cogdell.

A company culture that prosecutors contend encourages money-saving over safety has landed BP in the government's sights time and time again, and will only bolster the efforts of Howard Stewart, the formidable top prosecutor on the BP spill.