Here’s how a standard FBI interview works. Two agents sit down with the person to be interrogated. One agent does the questioning, the other takes notes — by hand. After the interview is over, back at the bureau office, the agent who took notes uses them to construct a memo summarizing the conversation.
That summary, then, is twice removed from the actual interview. The notes are not an exact rendering of the dialogue; and the memorandum is not an exact copy of the notes. Yet the summary is treated as the official record of the interview. The 302 is a record to which the interviewee is held even though it is not close to a verbatim rendering of what was said — neither questions nor answers.
Those who regularly deal with 302s seem unsurprised when they are missing crucial information. In Jackson’s courtroom, lead Mueller prosecutor Andrew Weissmann was declaring Manafort had been caught in “another false statement.” The proof, said the prosecutor, was found in paragraph 17 of a “declaration” made by an FBI agent involved in the interrogation.
“But it would be reflected in the 302, also?” the judge asked.
“I don’t think it is,” Weissmann responded. “I think it’s only in the declaration.”
The hearing moved on. But let’s pause to consider what just happened. The special counsel’s team was accusing Manafort of a specific lie, but the document ostensibly detailing what Manafort said — the 302 — did not have any record of the statement in question. So the prosecutor fell back on a supplemental declaration by an FBI agent. The 302, in other words, was so unreliable that it lacked key information on which prosecutors were basing their case.
And he was sentenced to prison anyway, after having had his home, his livelihood, his good name, and every penny he had taken away.
These problems are behind a decades-long campaign to have all law enforcement — from small-town deputy sheriffs to deputy directors of the FBI — make the recording of interviews standard policy.
One of the leaders of that effort has been civil liberties lawyer Harvey Silverglate, author of the book “Three Felonies a Day: How the Feds Target the Innocent.” He argues that 302s present a pervasive and unnecessary temptation for agents to bend the truth. A “fundamental flaw in the FBI’s truth-gathering apparatus,” Silverglate wrote in 2011, is “the long-defended Bureau-wide policy of not recording interrogations and interviews, a practice that allows the FBI to manipulate witnesses, manufacture convictions, and destroy justice as we once knew it.”
That may sound like strong stuff, unfair even. But the FBI’s own intransigence in the face of the electronic recording movement lends credence to Silverglate’s critique. An FBI response to this proposed reform has become notorious in civil libertarian circles. In 2006, the bureau produced a written rebuttal to the “on-going debate in the criminal justice community whether to make electronic recording of custodial interrogations mandatory.”
The policy memo offered several reasons why the FBI resisted recording, including the telling admission that, when people get a look at FBI interrogations in action, they don’t like what they see: As “all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants,” the memo states. “Initial resistance may be interpreted as involuntariness, and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.”
The bottom line is that FBI agents feel empowered lie to witnesses or suspects, but when those targets lie to the FBI they are charged with crimes. And being allowed to produce 302s, instead of taped interviews, allows this practice to continue. It’s worth noting that when that memo was produced, the FBI director was…
Guess who it was. Go on, guess. But wait, it gets even better:
There are more recent examples. Immediately after assuring President Trump in private meeting, “I don’t do sneaky things, I don’t leak, I don’t do weasel moves,” then-FBI director James Comey went to his car, got out his laptop and immediately began writing a 302-style memo. Which he later leaked. According to his own congressional testimony, Comey did the same thing to former White House Chief of Staff Reince Priebus. Yet Comey seemed surprised anyone would see those as weasel moves or sneaky things, the obvious irony being that we only know about the “weasel moves” quote because Comey put them in his 302-type memo.
Yeah, well, SOP for every lying weasel is to lie about being a weasel to anyone you intend to pull any weasel moves on. Then you crow to any fool willing to listen about your towering integrity, your unimpeachable honesty, and your abiding reverence for the “rule of law.” You reiterate your absolute commitment to “going only where the evidence leads.” Don’t worry, even when this soaring ziggurat of utter bullshit totters and falls, you can count on the media to back up your assertions…as long as it’s a Republican you’re targeting.
Ahh, but does it get better still, you ask? Of course it does—for certain values of “better,” at least.
The concern isn’t a new one: “You can have a conversation with an agent,” Robert Kennedy’s press secretary when RFK was attorney general, once told journalist Victor Navasky, “and when it is over he will send a memo to the files. Any relation between the memo and what was said in the conversation may be purely coincidental. You would think you were at different meetings.”
It was that sort of reputation that led the Department of Justice in 2014 to issue a new Policy Concerning Electronic Recording of Statements. Promulgated by then-Deputy Attorney General James M. Cole, the document opens with this declaration: “This policy 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 the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody.”
There was great anticipation that the new policy would finally be the end of commemorating interviews in memos derived from handwritten notes. “This policy change is an important step in the right direction,” the Harvard Law Review declared in 2015, “reflecting a growing movement that has recognized the benefits of recording interviews; however, the new policy puts in place little express accountability for failure to comply with the presumption.”
Not only is there “little express accountability” for not recording interviews at the FBI, the bureau has made it policy to interpret the presumption of recording in the narrowest possible way, while obliging agents to file 302s as a matter of course. DOJ policy notwithstanding, “FBI interviews with witnesses are rarely recorded,” says one prominent white-collar Washington, D.C., defense lawyer. “About 99 percent of the time agents take notes during the interview and then turn those notes into a 302.”
That 99 percent may be a slight exaggeration, but what is the real ratio of taped to typed interviews? If the bureau knows, it isn’t willing to share: “The FBI does not maintain statistical information about the aggregate number of electronic recordings or FD-302s prepared in a given window of time,” an FBI official told RealClearInvestigations.
So here’s what we have here: a truly omnipotent, entirely unaccountable, highly-secretive federal “law enforcement” bureaucracy that makes its own rules, rejects any and all calls for transparency or oversight, bends the law when it isn’t flouting it outright, and pursues its own clandestine agenda on its own terms. We have, in other words, the very thing the Founders warned against, the existence of which they established explicit boundaries intended to prevent. We have, in short, a monstrous, tyrannical, untouchable affront not only to justice, but to decency itself.
I was just about to repeat yet again that I only wish I could say I found this horrible article shocking, but this time I just can’t do it. The truth is, it IS shocking—stunning, even, no matter how jaded about our appalling, out-of-control government you may be. There is no possibility whatsoever that such a warped abomination—conceived in corruption, fattened on amorality, shot through with wickedness—can be reformed. Malignancy this deep is immune to it; it cannot be salvaged.
Tear it down. Burn the rubble. Scatter the ashes. Salt the earth.