Democrats and Republicans in Washington drove each other crazy over espionage 70 years ago. It’s deja vu all over again.
When people think of possible wrongdoing by the FBI these days, it often involves serious allegations of misbehavior concerning the investigation of the Trump Campaign or the pre-election reopening of the Clinton email investigation. But it seems to me that there is a more basic problem of corruption that overlaps a bit with politics but also extends well beyond it. The FBI’s procedures are designed to be less accurate than possible to allow them to more easily prosecute people. That is unfair and may be unconstitutional.
The FBI often conducts interviews of persons. Rather than videotape these interviews, the FBI assigns an agent to take notes of the interview. Then, if the FBI believes that an interviewee has lied during the interview, he or she can be prosecuted for false statements to the government. The penalty for this is quite serious. Under 18 U.S.C. 1001, making a false statement to the federal government in any matter within its jurisdiction is subject to a penalty of 5 years imprisonment. That is a long time.
How does the FBI prove the false statement? One might think that they would make a videotape of the interview, which would provide the best evidence of whether the interviewee made a false statement. But if one thought this, one would be wrong, very wrong.
The FBI does not make videotapes of interviews. Apparently, there are FBI guidelines that prohibit recordings of interviews. Instead, the FBI has a second agent listen to the interview and take notes on it. Then, the agent files a form—a 302 form—with his or her notes from the interview.
What is going on here? Why would the FBI prohibit videotaping the interviews and instead rely on summaries? The most obvious explanations do not cast a favorable light on the Bureau. If they don’t tape the interview, then the FBI agents can provide their own interpretation of what was said to argue that the interviewee made a false statement. Since the FBI agent is likely to be believed more than the defendant (assuming he even testifies), this provides an advantage to the FBI. By contrast, if there is a videotape, the judge and jury can decide for themselves.
If this is what is going on, it is outrageous. The FBI uses procedures that allow them to offer a less than a fully accurate version of the interview so that they can convict interviewees. After all, the videotape is the best evidence of what occurred at the interview. So the FBI is not allowing the best evidence, presumably so they can secure convictions.
One might even argue this is unconstitutional under existing law. Under the Mathews v. Eldridge interpretation of the Due Process Clause, a procedure is unconstitutional if another procedure would yield more accurate decisions and is worth the added costs. Given the low costs of videotaping, it seems obvious that the benefits of such videotaping for accuracy outweigh the costs.
There is no persuasive justification for this practice. Harvey Silvergate considers the FBI’s reasoning in this extremely helpful article, but none of their arguments are persuasive. Silvergate’s piece is excellent. He explains why the FBI continues this practice of no recordings:
So what happens when the sole arbiter of what a witness says in an FBI interview is the 302 Report written by an FBI agent? If that witness should later be compelled to testify at a grand jury proceeding (leading to an indictment of the target of the investigation) or at the trial itself, he is under tremendous pressure to testify consistently with what the 302 report claims he told the agents when interviewed. Should a witness give testimony that is in conflict with the 302 report, he opens himself up to a felony conviction—either he had lied to the FBI in his initial interview, or he is lying to the grand jury or the court (or the congressional committee) in his testimony. Either way, he remains stuck between the Scylla of perjury and the Charybdis of a false-statements charge. Few question the veracity of the 302 report; after all, who will a jury more likely believe, a single witness or two upstanding FBI agents swearing that what they wrote in their 302 report accurately represents what the witness said when interviewed? When the feds suspect that a witness might tell a tale at the grand jury or at trial that is inconsistent with the prosecution’s favored factual scenario, the prosecutors will usually show him or his lawyer the 302 report. It becomes clear to the witness that he either must stick to the 302 version, or else risk a false statement or perjury charge when he testifies differently under oath.
That is outrageous. This aspect of the FBI—which does not mainly involve politics—needs to be reformed. It is corrupt and pernicious.
I’m not holding my breath. In the meantime, don’t expect me to respect an organization that behaves in this way.
Update: I am happy to report that my post was too pessimistic. It turns out that in 2014, the Department of Justice under Eric Holder changed the policy on recording confessions. The new policy created a presumption in favor of recording custodial interrogations. Thus, it now seems that a greater percentage of FBI interviews are being recorded.
But we shouldn’t be too optimistic about this new policy. First, the policy does not apply to all interviews. It only applies to custodial interrogations and therefore interviews, where the interviewee was not in custody, are excluded. Thus, it is no surprise that the Michael Flynn interview was not recorded. In addition, there are four exceptions to the policy, even for custodial interviews. At least one of those exceptions is open-ended – when the relevant federal officials believe there is a “significant and articulable law enforcement purpose” to do so – which might allow the FBI to not record in cases when they do not want to have a recording.
Interestingly, it may be that the FBI changed the policy not to promote fairness and accuracy, but to promote convictions. One of the justifications for changing the policy was that jurors were not being supplied a strong piece of evidence against the defendants – a videotaped confession from the defendant. This was particularly a problem in certain cases, such as sexual abuse and violent crime cases. If the justification for the policy change was to promote convictions, then one might wonder how often interrogations are actually being recorded and whether it is only in cases when the FBI believes it will help with conviction.
Still, all things considered, this appears to be a step in the right direction. So I am happy to stand corrected.