Is an FBI Interview a G-Man’s License to Lie?

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At 10:38 on the morning of Feb. 4, 2019, the deputy for United States District Choose Amy Berman Jackson stated, “Good morning, Your Honor. This can be a sealed continuing, and the courtroom has been locked.”

Paul Manafort: no transcript, video or audio of what he was accused by Robert Mueller’s staff of mendacity about. 

AP Photograph/Susan Walsh, File

It was a listening to at which legal professionals for Particular Counsel Robert Mueller would argue that Paul Manafort had lied to them throughout 12 interviews, each earlier than and after putting his plea discount on international lobbying and cash laundering expenses. We all know what was stated behind these locked doorways as a result of a word-for-word transcript was made from the courtroom proceedings.

Unusually, there was no such transcript of what Manafort had stated in his interviews. This made it tough to reconstruct what his responses to questioning had been, not to mention decide whether or not they had been truthful.

But when there was no transcript, certainly the courtroom might seek the advice of a videotape of his interrogation, the kind of recording that’s normal observe for native police who’re interviewing, say, a suspected automotive thief. And if there was no videotape for the decide to observe, certainly there was, on the very least, an audiotape.

However no. The bureau has insisted as a substitute, for greater than half a century, on summarizing its interrogations, of everybody from witnesses to targets, in a kind of memo designated an FD-302 or simply “302.” These memos have been utilized in current high-profile investigations to summarize the statements of Manafort, Hillary Clinton, and former nationwide safety adviser Michael Flynn, amongst others. Many had been shocked to study that Clinton’s interview with the FBI about her dealing with of categorised emails was not tape-recorded. They could be extra shocked to study that’s normal FBI process.

Amy Berman Jackson: Choose annoyed by having to seek the advice of an FBI 302 memo relatively than verbatim testimony.

United States Authorities/Wikimedia 

Choose Jackson, who would in the end aspect with Mueller’s staff on the query of Manafort’s truthfulness, was flummoxed at first. She didn’t fairly know what to make of the accusations Manafort had lied after he had pleaded responsible and promised to cooperate. Flummoxed, as a result of she was attempting to reconstruct from 302s what had and hadn’t been stated.

“That is not the way in which the 302 learn to me after I learn it,” she stated in response to the prosecution’s characterization of Manafort’s testimony. “That is the issue with not having grand jury testimony, however having to have a look at a 302.” Clearly annoyed, the decide added, “I could not be capable of resolve it on the face of the 302.”

Though some media protection has recommended in any other case, a 302 shouldn’t be a transcript. Right here’s how a regular FBI interview works. Two brokers sit down with the individual to be interrogated. One agent does the questioning, the opposite takes notes — by hand. After the interview is over, again on the bureau workplace, the agent who took notes makes use of them to assemble a memo summarizing the dialog.

That abstract, then, is twice faraway from the precise interview. The notes should not an actual rendering of the dialogue; and the memorandum shouldn’t be an actual copy of the notes. But the abstract is handled because the official file of the interview. The 302 is a file to which the interviewee is held though it’s not near a verbatim rendering of what was stated — neither questions nor solutions.

Those that often take care of 302s appear unsurprised when they’re lacking essential data. In Jackson’s courtroom, lead Mueller prosecutor Andrew Weissmann was declaring Manafort had been caught in “one other false assertion.” The proof, stated the prosecutor, was present in paragraph 17 of a “declaration” made by an FBI agent concerned within the interrogation.

“However it might be mirrored within the 302, additionally?” the decide requested.

“I don’t suppose it’s,” Weissmann responded. “I feel it’s solely within the declaration.”

The listening to moved on. However let’s pause to think about what simply occurred. The particular counsel’s staff was accusing Manafort of a selected lie, however the doc ostensibly detailing what Manafort stated — the 302 — didn’t have any file of the assertion in query. So the prosecutor fell again on a supplemental declaration by an FBI agent. The 302, in different phrases, was so unreliable that it lacked key data on which prosecutors had been basing their case.

Thomas Zehnle: Manafort legal professional argued the absence of an “evidentiary foundation for locating that Mr. Manafort deliberately misled the investigators.” 

AP Photograph/Carolyn Kaster

No less than Manafort’s lawyer, Thomas E. Zehnle, was paying consideration. In a post-hearing memorandum, Zehnle and his co-counsels wrote to the courtroom: “Lastly, even when one has some concern about how the FBI’s abstract report reads, it doesn’t present the evidentiary foundation for locating that Mr. Manafort deliberately misled the investigators.” Pointing to the 302, they added, “The federal government’s abstract shouldn’t be a grand jury transcript that identifies particular questions and solutions; it stays ambiguous.”

By their very nature, 302s are ambiguous not simply because they could be unreliable narrations, however as a result of they could embody data past simply what was stated. In response to an inquiry from RealClearInvestigations, an FBI official defined, “The FD-302 type, in pertinent half, is used to memorialize interviews in addition to different data that will change into the topic of testimony.” Requested what precisely “different data” means, or for an instance of such data, the official replied, “We’re not in a position to present any specifics or additional remark for you.”

However Jackson’s courtroom offered some inkling of what “different data” could be. Weissmann known as the decide’s consideration to “Exhibit 10, web page 6, which is the 302” of one of many Manafort interrogations. The prosecutor requested the decide to “have a look at the 302 — and I would similar to to cite a few of it to you, as a result of a few of it’s factual about what the details had been, not simply intuiting what was in somebody’s head.”

On this inadvertent admission, Weissmann declared that “some” of the federal government memo getting used as proof “is factual about what the details had been.” And that this a part of the memo was “not simply intuiting what was in somebody’s head.” However doesn’t that counsel that different components of the 302 handed alongside data that wasn’t factual or intuited “what was in somebody’s head”? A 302 purports to be an correct account of what was stated in an interview. How correct are brokers’ intuitions about their interviewees’ states of thoughts? Are we keen to convict individuals and ship them to jail for false statements based mostly on what brokers intuit?

An Previous Behavior

These issues are behind a decades-long marketing campaign to have all legislation enforcement — from small-town deputy sheriffs to deputy administrators of the FBI — make the recording of interviews normal coverage.

One of many leaders of that effort has been civil liberties lawyer Harvey Silverglate, writer of the e-book “Three Felonies a Day: How the Feds Goal the Harmless.” He argues that 302s current a pervasive and pointless temptation for brokers to bend the reality. A “elementary flaw within the FBI’s truth-gathering equipment,” Silverglate wrote in 2011, is “the long-defended Bureau-wide coverage of not recording interrogations and interviews, a observe that enables the FBI to control witnesses, manufacture convictions, and destroy justice as we as soon as knew it.”

Which will sound like robust stuff, unfair even. However the FBI’s personal intransigence within the face of the digital recording motion lends credence to Silverglate’s critique. An FBI response to this proposed reform has change into infamous in civil libertarian circles. In 2006, the bureau produced a written rebuttal to the “on-going debate within the prison justice neighborhood whether or not to make digital recording of custodial interrogations necessary.”

Robert Mueller: Notorious 2006 coverage memo was issued underneath his watch as FBI Director.

AP Photograph/J. Scott Applewhite

The coverage memo supplied a number of the explanation why the FBI resisted recording, together with the telling admission that, when individuals get a have a look at FBI interrogations in motion, they don’t like what they see: As “all skilled investigators and prosecutors know, completely lawful and acceptable interviewing strategies don’t all the time come throughout in recorded style to put individuals as correct technique of acquiring data from defendants,” the memo states. “Preliminary resistance could also be interpreted as involuntariness, and deceptive a defendant as to the standard of the proof in opposition to him could look like unfair deceit.”

The underside line is that FBI brokers really feel empowered mislead witnesses or suspects, however when these targets mislead the FBI they’re charged with crimes. And being allowed to supply 302s, as a substitute of taped interviews, permits this observe to proceed. It’s price noting that when that memo was produced, the FBI director was Robert Mueller.

The observe of utilizing memos as a substitute of precise transcripts turned normal process a very long time in the past, and dates to precedents established by founding FBI Director J. Edgar Hoover. Typically the 302 stories mirrored noble work. However not all the time.

Within the 1950s, 302 types had been filed by particular brokers probing the non-public lives of suspected Communists. Within the 1960s, 302 stories had been used as a record-keeping instrument by FBI brokers penetrating the Ku Klux Klan. When Particular Brokers James P. Hosty Jr. and James W. Bookhout interrogated Lee Harvey Oswald on the day of John F. Kennedy’s assassination, they summarized the questioning in a 302 they dictated the following day. It’s a measure of the artificiality of the memos, and the brokers’ skewed sense of what was essential, to incorporate within the 302 that the brokers, within the first paragraph of their report, said that Oswald “made many uncomplimentary remarks concerning the FBI.”

Mark Felt: “Deep Throat” FBI man filed a deceptive 302 report.

AP Photograph/File

Through the Watergate scandal, Deputy FBI Director Mark Felt filed a deceptive 302 type in an try to solid aspersion for information leaks to The Washington Submit onto a Miami prosecutor. But it was Felt who was Bob Woodward’s notorious “Deep Throat.”

This final instance highlights two problematic elements of the observe. First, though FBI officers could painting the 302 as a impartial investigating gadget, the potential for abuse is so nice that it’s virtually baked into the method. These should not even-handed wire service tales. They’re a one-sided recounting of a dialog tailor-made to place the writer, and the bureau, in the absolute best mild.

Second, it’s so ingrained in FBI tradition that the bureau’s management doesn’t query whether or not it’s an inherently unfair methodology of constructing a case.

Instantly after assuring President Trump in non-public assembly, “I don’t do sneaky issues, I don’t leak, I don’t do weasel strikes,” then-FBI director James Comey went to his automotive, obtained out his laptop computer and instantly started writing a 302-style memo. Which he later leaked. In response to his personal congressional testimony, Comey did the identical factor to former White Home Chief of Workers Reince Priebus. But Comey appeared stunned anybody would see these as weasel strikes or sneaky issues, the plain irony being that we solely know concerning the “weasel strikes” quote as a result of Comey put them in his 302-type memo.

“The Bureau cherishes its procedures and lives by them,” Andrew McCabe, one other fired high FBI official, wrote in his current memoir. “The official write-up alone utility interview, carried out in Philadelphia greater than twenty years in the past, may be discovered someplace within the personnel information on the J. Edgard Hoover Constructing. It’s a type often known as a FD-302. Each interview carried out by an FBI agent is reported or summarized on a 302. This way is probably the most fundamental constructing block of an investigation.”

Brian Boetig: When interviews and interrogations aren’t recorded, any variety of issues can go unsuitable.

AP Photograph/The Buffalo Information, Derek Gee

Not all FBI brokers consider they need to be. Across the identical time because the controversial “deceptive a defendant” clarification was being promulgated, Particular Agent Brian Boetig co-authored an article, “Revealing Incommunicado: Digital Recording of Police Interrogations,” for the FBI Legislation Enforcement Bulletin. In it, he and his fellow authors made the case for recording all interviews. (Boetig shouldn’t be squeamish: His crime-fighting bona fides are stable sufficient that he was lately promoted to be assistant director of the bureau’s Weapons of Mass Destruction Directorate.) “Testimony relating to what transpired contained in the interrogation room,” they wrote, “can change into tainted if solely the members witnessed what occurred.”

Boetig and his co-authors argued that when interviews and interrogations aren’t recorded any variety of issues can go unsuitable: “First, issues related to recollection can contribute to conflicting statements. Interrogations usually final for hours and precise transcripts can not exactly memorialize every part. Moreover, a trial could not happen for years after the interrogation, lowering the power to cognitively recall all the particular particulars and circumstances not recorded in notes or stories.”

Past that, observe jotters and memo writers can merely get issues unsuitable. It might be a outstanding feat of note-taking to seize each phrase that’s stated in a fluid dialog; so to start out with, pertinent dialogue is lacking even in probably the most scrupulously produced 302. There might also be issues that the observe taker mishears, misunderstands, or scribbles down incoherently.

Once more, do not forget that the notes aren’t the completed product: They’re used as a reference by the agent as she or he — maybe days later — reconstructs the interview in abstract type. Such summaries could be helpful for brokers and case managers to maintain monitor of investigations, however the usage of 302s goes far past that. They change into the official file of what was stated in an interview. If one contradicts that file in subsequent interviews or testimony, the 302 can be utilized as proof that one has lied to the federal government.

The Michael Flynn Case

It’s one factor to be held accountable for what one says in a tape-recorded interview, the place there’s a full file of what was stated on either side of the dialog. However how assured can we be {that a} memo summarizing handwritten notes is correct, even assuming brokers’ finest good-faith efforts? Assured sufficient to ship somebody to the penitentiary for a few years?

Michael Flynn: Errors had been made in his FBI interview, however not solely by him.

AP Photograph/Carolyn Kaster

Think about Michael Flynn, who pleaded responsible to “making materially false statements and omissions” to FBI brokers as a result of the 302s of his interview didn’t match different proof the bureau had collected. It seems that errors had been made — and never solely by Flynn.

For starters, one of many two FBI brokers who interviewed Flynn on Jan. 24, 2017 was Peter Strzok, who was later faraway from the investigation due to deep anti-Trump animus he expressed in texts with a fellow FBI worker. Even then, based on congressional testimony, Strzok and the opposite agent didn’t actually consider Flynn lied to them. And, after all, they’d no tape recording to assist them weigh the details. As McCabe himself wrote in a memo, “[I]t was not an awesome starting of a false statements case.”

That facet of the saga obtained some media consideration. However one other one didn’t. Late final yr, District Court docket Choose Emmet G. Sullivan ordered the particular counsel to launch the FD-302 memorializing the interview with Flynn. On Dec. 17, the Mueller staff complied: “the federal government hereby information two redacted variations of the FD-302 report summarizing the FBI’s interview of the defendant on January 24, 2017.”

Two variations?

The primary had been initially filed Feb. 15, 2017, three weeks after the interview with Flynn. Three weeks appears an awfully very long time for recollection, particularly of delicate particulars that will result in a person being prosecuted for mendacity to the FBI. Is three weeks frequent and even in keeping with official coverage? It’s laborious to say, as a result of the publicly accessible model of the FBI’s Home Investigations and Operations Information reads, “Any matter which may be testimonial should be documented utilizing an FD-302 inside [REDACTED].”

Peter Strzok: He and the FBI agent with him didn’t actually consider Flynn lied to them, based on testimony.

AP Photograph/Manuel Balce Ceneta

Let’s put apart the query of the way it might presumably be the case that the usual deadline for submitting a 302 is a few kind of secret that warrants redaction. Let’s assume that three weeks is throughout the window. However even when three weeks doesn’t look like a very long time, that’s nothing in comparison with how lengthy it took to file the second, last model of the Flynn 302 — 3½ months. Right here’s how Robert Mueller defined what occurred: “The content material of each variations of the report is similar, besides that the primary model, which was digitally signed and authorized in February 2017, inadvertently contained a header labeled ‘DRAFT DOCUMENT/DELIBERATIVE MATERIAL.’ As soon as that error was acknowledged,” Mueller stated, “the header was eliminated and a corrected model, omitting solely the header, was re-signed and re-certified in Might 2017.”

How did the phrases “DRAFT DOCUMENT/DELIBERATIVE MATERIAL” discover their approach onto the 302? And don’t these phrases counsel that the doc was nonetheless open to revision? The one factor we may be fairly certain of, nevertheless, is that wrong claims had been made in an official FBI file of an interview: Isn’t that the kind of factor that will get individuals in bother?

However let’s be extra beneficiant than aggressive prosecutors are typically and settle for that the error was inadvertent, as Mueller claims. That will be proof of an astonishing tendency to error within the creation of FD-302s. Right here we’ve got a vital 302 of the very best significance — one offering the pretext to prosecute the White Home nationwide safety adviser. And it not solely has an “error” on the high of the web page, that “inadvertent” textual content is centered and written in daring, all-capital letters. If that’s the kind of supersized mistake that occurs in a high-priority case, what does that inform us concerning the accuracy and reliability of the common FD-302?

FD-302 from the Warren Fee investigation of the assassination of President John F. Kennedy.

FBI/Warren Fee/Wikimedia 

The priority isn’t a brand new one: “You’ll be able to have a dialog with an agent,” Robert Kennedy’s press secretary when RFK was legal professional common, as soon as instructed journalist Victor Navasky, “and when it’s over he’ll ship a memo to the information. Any relation between the memo and what was stated within the dialog could also be purely coincidental. You’d suppose you had been at totally different conferences.”

It was that kind of status that led the Division of Justice in 2014 to difficulty a brand new Coverage Regarding Digital Recording of Statements. Promulgated by then-Deputy Lawyer Normal James M. Cole, the doc opens with this declaration: “This coverage establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and america Marshals Service (USMS) will electronically file statements made by people of their custody.”

There was nice anticipation that the brand new coverage would lastly be the tip of commemorating interviews in memos derived from handwritten notes. “This coverage change is a crucial step in the correct route,” the Harvard Legislation Assessment declared in 2015, “reflecting a rising motion that has acknowledged the advantages of recording interviews; nevertheless, the brand new coverage places in place little specific accountability for failure to adjust to the presumption.”

Not solely is there “little specific accountability” for not recording interviews on the FBI, the bureau has made it coverage to interpret the presumption of recording within the narrowest potential approach, whereas obliging brokers to file 302s as a matter after all. DOJ coverage however, “FBI interviews with witnesses are not often recorded,” says one outstanding white-collar Washington, D.C., protection lawyer. “About 99 p.c of the time brokers take notes through the interview after which flip these notes right into a 302.”

That 99 p.c could also be a slight exaggeration, however what’s the actual ratio of taped to typed interviews? If the bureau is aware of, it isn’t keen to share: “The FBI doesn’t preserve statistical details about the combination variety of digital recordings or FD-302s ready in a given window of time,” an FBI official instructed RealClearInvestigations.

Requested why 302s are nonetheless normal working process, the bureau is coy. “The digital recording of non-custodial interviews shouldn’t be required,” the identical FBI official stated in an e-mail alternate. However that covers plenty of suspects and witnesses, as any variety of FBI targets can attest, together with Michael Flynn. Though the present DOJ written tips name for video or audio recording of interviews of individuals underneath arrest, it additionally contains this caveat: “Interviews in non-custodial settings are excluded from the presumption.” And “non-custodial” is an attention-grabbing time period of artwork.

“There’s a presumption that statements made by individuals in FBI custody should be recorded,” the bureau instructs brokers within the 2016 version of the Home Investigations and Operations Information. However that leaves plenty of working room to interrogate individuals with out cameras or recording gadgets. To the FBI, “custody” solely applies “following arrest and previous to preliminary look when the arrestee is in a spot of detention with appropriate recording gear.”

Meaning for individuals who haven’t but been arrested when they’re interviewed– as was the case with Lt. Gen. Flynn — FBI coverage is to depend on 302s to memorialize what was stated and accomplished. The identical holds true of those that have been arrested after which have been arraigned, which explains why the particular counsel’s workplace and the FBI didn’t really feel obliged to file any of their dozen interviews with Manafort.

The FBI does enable brokers to think about recording non-custodial interviews, however requires “the interviewing worker” to think about a spread of things. One such issue is “[w]hether the interviewee’s personal phrases and look (in video recordings) would assist rebut any doubt concerning the which means, context or voluntariness of his/her assertion or confession raised by his/her age, psychological state, instructional stage, or understanding of the English language; or is in any other case anticipated to be a difficulty at trial, corresponding to to rebut an madness protection; or could also be of worth to behavioral analysts.”

The opposite components equally deal with the query of whether or not a recording will assist get a conviction relatively than whether or not it should assist get on the fact.

Recordings should not all the time good representations of what occurred in interviews, both. (There may be, for instance, literature on how digital camera placement can have an effect on viewers’ interpretations of a topic’s demeanor.) However digital recording is clearly superior to the 302 course of with its invitation to error and danger of baked-in bias. But, in a society the place any and all of 1’s actions are captured on videotape (simply ask Jussie Smollett), the one state of affairs in which there’s doubtless to not be a digital camera working is in an official FBI interview.

What is going to it take to have the FBI surrender its cussed dedication to the scribble-and-type methodology of memorializing interviews? A decree from the legal professional common or the president would doubtless get the job accomplished. Or laws from Capitol Hill, which controls the FBI’s funding. Concern about retaining the general public’s confidence within the bureau definitely hasn’t been sufficient. Nor have humiliating courtroom defeats.

Noor Salman, second from proper, along with her legal professionals. She was acquitted of mendacity to the FBI in regards to the Orlando, Florida, nightclub bloodbath carried out by her husband.

Susan Clary through AP

A yr in the past, a jury in Florida acquitted Noor Salman of all expenses in opposition to her within the bloodbath on the Pulse nightclub in Orlando. The spouse of Omar Mateen, the mass assassin who carried out the assault, Salman was charged by federal authorities with obstruction of justice and aiding and abetting her husband within the assault.

The Justice Division’s case was based mostly virtually solely on the confession FBI brokers obtained Salman to signal after questioning her for 18 hours with out a lawyer – and, crucially, because it turned out — with out a tape recorder. On the finish of that interrogation, she signed a press release based mostly on data fed to her by the 2 investigating FBI brokers, a press release the brokers wrote themselves. A few of that data could be disproven at trial, which means that the prosecution relied on a “confession” that contained data fed to her by FBI brokers that the federal government subsequently discovered to be unfaithful. Furthermore, on the trial, the brokers contradicted one another on important parts of what she stated. These discrepancies may need been resolved by a tape or transcript of the interview, however after all, nothing of the sort existed.

“The FBI should be part of the remainder of legislation enforcement and file all statements,” one among Salman’s attorneys, Charles Swift, stated after the acquittal was introduced. “It’s ridiculous in the event that they don’t.”

The jury foreman agreed. In a press release issued afterward to the media, the foreman stated the jury was satisfied that Noor Salman did know what her husband was planning on doing. However based mostly on the unfinished methodology the FBI used to gather proof, they couldn’t in good conscience convict her.

“I want that the FBI had recorded their interviews with Ms. Salman,” the foreman added, “as there have been a number of important inconsistencies with the written summaries of her statements.