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The Corruption of the FBI

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.

Reader Discussion

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on December 20, 2018 at 09:41:15 am

OK, Mike, take a bow for the essay.

HOWEVER,

"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."

this clearly misses the real corruption at the FBI.

It is not the *re-opening* of the Clinton investigation but rather the fact that it was to begin with.

See here from Rep. Ratcliffe:

https://twitter.com/RepRatcliffe/status/1075230263997882370/photo/1?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1075230263997882370&ref_url=https%3A%2F%2Fwww.powerlineblog.com%2Farchives%2F2018%2F12%2Fjames-comey-crooked-cop.php

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gabe
on December 20, 2018 at 09:42:15 am

Oops:

Should read: "the fact that it was quashed to begin with."

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gabe
on December 20, 2018 at 10:49:06 am

Should someone being interrogated by the FBI bring an attorney with him? Apparently, the interview itself puts him in jeopardy.

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Wayne Abernathy
on December 20, 2018 at 12:19:21 pm

Never... excuse me, NEVER talk to the government or law-enforcement without an attorney. Further, if the interviewer will not consent to a full recording of the interview, no interview. NEVER buy the mantra (repeated by Hollywood writers living in a bubble) of, "well, if you've done nothing wrong & have nothing to hide it could put you in a positive light to cooperate." That is utter horsehockey. As Stalin's secret police chief (Beria) is alleged to have said, "Show me the man and I'll show you the crime." The government will manufacture a case out of whole cloth if the ends justifies it. A sad state of affairs, but there it is. Deviate from that at your peril.

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Wes
on December 20, 2018 at 13:46:44 pm

I will never stop saying it: 18 U.S.C. 1001 is an abomination to a free people. Some paperwork requirement that the FBI routinely violates isn't even on the road to the ballpark of injustice that is that statute.

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QET
on December 20, 2018 at 14:10:22 pm

Which is precisely WHY no person should EVER voluntarily agree to be interviewed by the FBI - or any other law enforcement agency. They can’t compel you to come to their offices - absent a warrant - and they can’t compel you to answer questions. Just say NO to the FBI.

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Daniel Artz
on December 20, 2018 at 19:14:04 pm

Professor Rappaport seems all fired up with rightful indignation ("... don’t expect me to respect an organization that behaves in this way.'') complaining about the FBI's failure to video-record its investigation interviews which can (and frequently do) lead to criminal felony prosecutions and convictions despite their intrinsic potential for factual conflict of the "he said/she said" nature, a conflict which typically is sufficiently serious even to prevent prosecutors from prosecuting other kinds of alleged crime and to prevent judges and juries from reaching a judgment of guilty in other kinds of cases of alleged crime.

It's hard to argue with a straight face that it's not necessary or at least proper in criminal investigations to record (at least audio, and I can see no reason not to video-record them) interviews as a means of preserving evidence and of assuring an accurate depiction later of what was said earlier. Civil lawyers use pre-trial affidavits, interrogatories and recorded depositions, all of which are spoken, written and signed under oath and carry the penalty of perjury, to accomplish the same purposes. Civil cases frequently video record depositions when there is a reasonable prospect that the deponent may be unavailable later for trial. FBI interviews are not identical to civil discovery, but they are almost identical in their primary "Jack Webb" purpose, which is investigatory, to get "Just the facts, Ma'am." and to preserve the witness' statement of facts in accurate form. (Lying to Jack Web was not a crime.)

Yet, it strikes me as morally diffident, if not legally trivial, for L&L and Rappaport to select as worthy of their priority and their special written attention just that one particular and relatively very minor matter of impropriety out of the veritable tsunami of government corruption, criminal malfeasance and managerial misfeasance committed by the Obama FBI, DOJ, State Department, Director of Intelligence and CIA and by the Obama White House and by perhaps many dozens of Obama operatives in these agencies that has washed over the nation since the Democrats (confronted with Hillary's almost undeniable email and Foundation crimes and with the prospect and then the certainty of Trump's election) launched Operation Midyear Exam to protect the Clintons and Operation Crossfire as its "insurance policy" to deflect criminal attention off of the Clintons and on to the Trump Campaign and so as to help the Democrats, hurt the Republicans and undermine the credibility of and public faith in the outcome of a national election that the Democrats lost and so as to weaken a president whom they despise, all to the direct effect of a) nearly destroying public trust in national elections, federal law enforcement and central intelligence gathering and b) demoralizing the nation and defaming the thousands of honest federal law enforcement and intelligence-gathering experts and professionals.

ALL of the DOJ's/FBI's faux- investigation, half-ass investigation and failures to investigate the Clinton emails and the Clinton Foundation pay-for-play scheme (Operation Midterm Exam) and the Democrat Party's launch and intensive, unscrupulous conduct of the Trump Campaign/Russia Collusion Investigation (Operation Crossfire) constitute a public abuse, an election suppression scam, a deep scar on the constitution and an affront to all of the decent, honest law-enforcement and intelligence-gathering operations and operatives who seek to protect and defend the constitution and the country by working, rather than criminally-scheming, contriving evidence and politically-conniving under cover of law so that the Democrat Party might thrive and the Republican Party might suffer.

That's what Beria's KGB did for Stalin; it's what Putin's and Xi Jinping's bravos do for them.

That's what L&L needs to write about because right now in America that's the greatest threat we face to law and liberty, not the absence of a requirement that FBI Agents record their investigation interviews, however common sensical it would be to take that tiny step toward reform.

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Pukka Luftmensch
on December 20, 2018 at 19:43:41 pm

Hear hear!

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QET
on December 20, 2018 at 21:13:16 pm

And not just "Hear hear" to all that, I also say that if L&L must, out of political diffidence, mute its ire and constrain its criticism to merely the matter of the FBI's interview process, rather than focusing on the immaterial failure of the rogue Obama FBI Headquarters to record General Flynn's interview (and that of other targeted "squeezes") L&L should aim its analytical firepower at the very consequential aspects of the special FBI interview process specially-contrived for Operation Midterm exam and the wholly different interview process specially-contrived for Operation Crossfire (the differing names say a lot.) Quickly listed as they come to mind in no particular order, here are some of the constitutional and other legal defects:

1) Conducting an unusually brief Clinton interview a) AFTER and despite the enormous amount of time, money and information that had been generated over almost two years of investigation about the emails, b) AFTER FBI Director Comey had already prepared a specially-edited statement exonerating her of criminal liability and c) while allowing allowing Clinton's aides to act as her counsel and to advise her during the interview, all of said aides being important criminal suspects and indispensable witnesses in the Clinton investigation, said Clinton aides given immunity in return for nothing except turning over government property to its owner, the US government, and no Clinton aide ever interviewed by the FBI. FYI, two of these aides served as Clinton's lawyer during the FBI interview of Clinton despite the strong ethical prohibition against a lawyer serving as counsel in any matter in which he is a witness. (A similar constraint led Jeff Sessions to recuse himself from performing a huge portion of his duties as Attorney General for almost two years.)
2) Flynn's interview was a) part of a counter-intelligence/criminal investigation, b) was illegal because it was initiated by the FBI without any evidence that Flynn had committed a crime, c) conducted after the interviewing FBI Agents already knew what Flynn had said to the Russian Ambassador (because the FBI had recorded the conversation,) which fact means that the interview was fraudulent ab initio and not part of authentic FBI investigation into that particular conversation because the FBI does not investigate to find facts that are already in the FBI's possession. Rather, an FBI agent acts improperly when he asks about what he already knows solely to entrap an unknowing target into committing perjury during the questioning ), d) conducted while Flynn was under FBI scrutiny and was, thus, suspected by the interviewing agents of having done something wrong even though they could not put their finger on just what it was and even though Flynn had committed no crime before the interview and even though the FBI agents failed to disclose to Flynn that he was a suspect in an FBI criminal investigation and that, therefore, he was constitutionally- entitled i) to refuse to meet with them, ii) to remain silent in the face of their questions and iii)to have his lawyer present should he choose to talk; e) conducted after and despite the facts that Flynn was i) intentionally encouraged by the agents not to consult White House Counsel (or any other lawyer) and ii) deliberately misled into believing that they just wanted to chat with the incoming NSC Director informally about counter-intelligence national security concerns.

Any federal or state judge faced with an indictment based on this FBI interview would grant a motion to dismiss the case or at least to bar the use of the interview as evidence. Flynn could not have been convicted of any crime based on that FBI interview. Comey knew that, Rod Rosenstein knew that, Sessions and Mueller knew it, too, and all four failed to do anything about it. Yet each took (and violated) an oath to protect and defend the Constitution and the laws of the United States

Now those are serious matters of how not to conduct an FBI interview and how to proceed lawfully thereafter if an improper, unlawful FBI interview is conducted.
Record the interview, why not. But make the interview lawful above all else.

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Pukka Luftmensch
on December 21, 2018 at 08:16:36 am

"Any federal or state judge faced with an indictment based on this FBI interview would grant a motion to dismiss the case or at least to bar the use of the interview as evidence"

And at times, it appeared that Judge Sullivan WANTED to do just that. Yet, Flynn would not change his plea even after repeated entreaties from the Judge to do so.

This is perplexing.
a) Is there more to the Flynn story.
b) Is Flynn so financially and emotionally strapped that he can longer defend himself?
c) Is it not curious that precisely at the moment of sentencing, Mueller releases information concerning the "illegal" activities of some associates of Flynn?
d) Was Sullivan's query to the Prosecution team regarding "treason" posed cynically? or seriously?

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gabe
on December 21, 2018 at 10:26:36 am

a) Yes, lots more and who but the Shadow knows what evil lurks in the heart of Mueller's henchmen? The son must be at serious risk. I know a man who went to jail on a plea deal that said, in effect, "We'll leave your brother alone if..."
b) Financially for sure, probably millions in debt to lawyers and bleak prospects of employment even as a Starbucks barista (or should I say "especially as a Starbucks barista?
c)Yes, it is curious and probably relates to a) and what else Mueller could implicate Flynn in. As the KGB knew, do an archeological dig through every inch of a man's life, a psychologist's "interview" of everyone he ever knew, worked with or even met (some of whom have things they did and wish to hide) and soon the acquaintances of one's past start to search their memories, compose creative music and sing strange songs that are pleasing to their jack-booted listeners.
d) I've heard both and believe the notion that he did it to force the prosecution publicly to wipe that slime from Flynn's face. Makes no sense to me, otherwise, although the judge did display a mental derangement episode that day which may be symptomatic of a brain tumor (I'm serious.) Also, he's a product of the Bushes and Clinton who's litters contained lots of bad puppies and lots of good pups..

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Pukka Luftmensch
on December 21, 2018 at 11:55:43 am

"“We’ll leave your brother alone if…”

My Gawd, Ethel!

Are we watching a pilot for a remake of Law and Order with the estimable Mueller aspiring to the role of the pompous self-righteous prig, Jack McCoy who was also quite fond of threatening prosecution of one's children, siblings, spouses, etc.

Mueller does have the same threatening countenance and bushy eyebrows.

I think we got it. Ollie.

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gabe
on December 21, 2018 at 13:34:54 pm

https://www.theavalon.org/films/stan-ollie/

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Pukka Luftmensch
on December 21, 2018 at 13:49:24 pm

luvv'd it!

And no, Ollie, we don;t need that trunk!

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gabe
on December 23, 2018 at 17:36:44 pm

Thanks, Mr Rapaport/Law and Liberty, for this very revealing analysis of the FBI's interviewing procedures. We fervently hope that there are federal lawmakers who will act on it, or if the President can fix it, great, in order to prevent the FBI to continue its nonsensical interviewing methods.

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Luis
on December 24, 2018 at 07:35:08 am

[…] Michael Rappaport at Law and Liberty: […]

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Image of Why Doesn't the FBI Videotape Interviews? - Marginal REVOLUTION
Why Doesn't the FBI Videotape Interviews? - Marginal REVOLUTION
on December 24, 2018 at 10:27:33 am

[…] The Corruption of the FBI? 3 by jseliger | 0 comments on Hacker News. […]

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Image of New top story on Hacker News: The Corruption of the FBI? – Golden News
New top story on Hacker News: The Corruption of the FBI? – Golden News
on December 24, 2018 at 10:27:52 am

[…] The Corruption of the FBI? 3 by jseliger | 0 comments on Hacker News. […]

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Image of New top story on Hacker News: The Corruption of the FBI? – Latest news
New top story on Hacker News: The Corruption of the FBI? – Latest news
on December 24, 2018 at 12:47:40 pm

[…] Michael Rappaport at Law and Liberty: […]

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Image of Why Doesn’t the FBI Videotape Interviews? | AlltopCash.com
Why Doesn’t the FBI Videotape Interviews? | AlltopCash.com
on December 24, 2018 at 19:28:12 pm

What you say is correct (though is certainly not a defense of Flynn, contrary to the talk-radio-style ranting posing as legal analysis in the above comments), but I do want to point out that AG Holder _did_ mitigate the FBI policy a bit. _Custodial_ interrogations are now recorded. But non-custodial interviews such as the one involving Flynn are still, unfortunately, not.

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David Nieporent
on December 24, 2018 at 21:45:27 pm

David Nieporent says:

''What you say is correct (though is certainly not a defense of Flynn, contrary to the talk-radio-style ranting posing as legal analysis in the above comments...''

As to which I ask a) why you would fail to defend Flynn, b) why do you refer to those comments which do defend Flynn against the illicit legal process to which he was unquestionably subjected as "talk-radio style ranting posing as legal anlysis," c) to what specific "talk-radio style" do you refer and d) what specifically do you consider "ranting" rather than legal analysis?

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Pukka Luftmensch
on December 25, 2018 at 18:35:48 pm

What if, like General Flynn, talking to the FBI is part is your job?

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Floris
on January 15, 2019 at 06:06:56 am

[…] even now establish a presumption of recording only for custodial interviews? [Alex Tabarrok citing Michael Rappaport, Law and Liberty and Harvey Silverglate […]

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“Why Doesn’t the FBI Videotape Interviews?” | Overlawyered
on May 19, 2019 at 20:17:11 pm

[…] The Corruption of the FBI […]

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Stasi for America – Abel Danger
on August 09, 2019 at 03:51:27 am

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The FBI Is Not There to Protect Americans – FBI: Commercial Militia – Abel Danger

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