With no requirements to record interviews, and the potential to prosecute based on false statements, the FBI has a terrifying amount of power over citizens.
Across the nation, FBI agents are swooping down upon conservative activists, Trump supporters, and anyone suspected of any tie to the January 6 clash at the Capitol. Conservative author Candace Owens tweeted on March 3: “About 10 of my friends who attended Trump’s speech but DID NOT go to Capitol building thereafter have had the FBI turn up at their door to ask them why they went to D.C. … Our FBI is trying to scare conservatives against ever gathering in the future.”
Actually, the potential problem is far worse for people targeted by the feds. FBI chief Christopher Wray, who is scrambling to deliver the indictments that will please his congressional overlords, says the agency is conducting 2,000 domestic terrorism investigations. Few Americans recognize how badly the legal playing field is tilted against them.
When FBI agents knock on their doors, many Americans won’t hesitate to open up because they assume “those who have nothing to hide have nothing to fear.” But along with Bureau procedures that are a travesty of due process, the FBI is exploiting a sweeping law that criminalizes casual comments. Federal agents have the right to lie to you and to put you in prison if you lie to them. Any citizen who makes even a single-word (“no” or “yes”) false utterance to a federal agent faces up to five years in prison and a $250,000 fine.
The federal false statements law conveys so much power that, according to Clinton administration Solicitor General Seth Waxman, federal agents can “escalate completely innocent conduct into a felony.” One federal judge condemned the law for encouraging “inquisition as a method of criminal investigation.” Justice Ruth Bader Ginsburg, dissenting in a 1998 Supreme Court case that upheld the law, warned that it can result in “government generation of a crime when the underlying suspected wrongdoing is or has become nonpunishable.” In other words, you can be not guilty of a crime but guilty of lying about the same noncrime.
It gets worse. You don’t have to actually lie. Cardinal Richelieu is said to have declared 400 years ago, “If you give me six lineswritten by the hand of the most honest of men, I will find something in them which will hang him.” FBI agents have an easier task than the cardinal since they can fabricate the sentences they use to legally destroy their targets. The legal fate of individuals who talk to FBI agents does not depend on what they said. Instead, it hinges on what FBI agents claim they said. FBI agents don’t have to read a Miranda warning to people whose lives may be destroyed as a result of an interview.
Unlike many other law enforcement agencies, the FBI rarely videotapes interviews, thereby permitting agents to create the narrative or “facts” which then can be used to charge individuals with false statements. A 2006 confidential FBI memo justified prohibiting recording because “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. 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.” Agents have been taught at the FBI Academy that targets of investigations “have forfeited their right to the truth,” but lying during interrogations could look bad to jurors who did not graduate from the FBI Academy.
Refusing to record interviews or make a transcript maximizes the FBI’s arbitrary power over private citizens. Instead, while one FBI agent asks questions, another FBI agent takes notes, which are later used to write a summary in a memo known as a 302.“An FBI agent’s contemporaneous notes are widely held up in court as credible evidence of conversations,” the New York Times noted in 2017. Boston defense attorney Harvey Silverglate, the author of Three Felonies a Day, notes that 302 forms are “notoriously unreliable.” He derided the FBI’s refusal to record interviews as foul play that allows “the FBI to manipulate witnesses, manufacture convictions, and destroy justice as we once knew it.” It is extremely difficult for individuals to dispute the ex post facto assertions in official FBI memos, thus explaining why some lawyers refer to 302s as “perjury trap forms.”
If the FBI shows up at your door, they are not there to commiserate with you about all those bastard liberals in Washington. How might the interrogation go if you attended Trump’s January 6 speech but not did not march to the Capitol? You have nothing to worry about, right? They ask why you went to hear Trump: You tell them it was because you are a patriot. They ask a few more questions about your political beliefs. You reply proudly with the first thing that comes to your mind. And then they ask follow-ups that make you realize they have every message you ever sent via Parler. What about your raging post-election messages, the agents ask. You shrug and offer what sounds to you like a passable defense. And then the agents start quoting from all of your postings on Twitter, Instagram, and Facebook. Uh-oh. “What I meant to say…” But the messages you sent to your hardline Facebook buddies were private, right? Nope—Facebook speedily turned over haystacks of private data to the feds after January 6. Perhaps the agents will ask exactly where else you went while in D.C. If you were one of the hundreds of people whose financial transaction records in the Washington area around January 6 were provided to the FBI by the Bank of America, your memory better be perfect. None of the questions from the preceding hypothetical interview indicate that you committed any crimes. But if the FBI 302 says that you contradicted yourself or misstated facts, you could become simply another bureaucratic scalp and a stepping stone for the agents’ promotions.
As criminal defense attorney Ken “Popehat” White observed in 2017, “FBI agents are trained in two dozen ways to ratchet up the pressure on you without getting out of their chair—verbal, nonverbal, tone, expression, pacing, subject changing, every trick that any cop ever used in the box.” White scoffed at naive folks who bare their souls to G-men who flash a badge: “Do you know every federal criminal law? Have you applied every federal criminal law to every communication and meeting and enterprise you’ve engaged in for the last five years?”
Don’t believe the game is rigged? Go tell it to General Flynn. When anti-Trump FBI agents decided to get Flynn, the newly designated National Security Advisor for Trump, two of them showed up for a supposedly brief casual chat at the White House. After the interview concluded, the FBI agents did not believe that Flynn had lied. But Peter Strzok largely rewrote the other agent’s 302, along with helpful “edits” from his FBI mistress, Lisa Page, to make Flynn sound culpable. The FBI also put forward a new 302 written six months after the Flynn interview which relied on other agents asking Strzok what he remembered from the Flynn conversation. In May 2020, the FBI claimed that it had lost the original 302 from the Flynn interview. Flynn was dragged through the dirt for years in part because FBI protocol barred any transcript of his interview. But few criminal defendants have the resources to fight this type of FBI shenanigans.
Anyone who still trusts the FBI system of interviewing and note-taking should recall what happened to Noor Salman, the widow of the guy who killed 49 people at the Pulse Nightclub in Orlando in 2016. She was charged with material support of a foreign terrorist organization and lying to the FBI about knowing about her husband’s pending attack on the nightclub. The FBI vigorously interrogated her for 18 hours without a lawyer and with no video recording, threatening her with the loss of custody of her infant son unless she signed a confession. Salman, who reportedly had an IQ of only 84, initially denied any knowledge but relented and signed a statement composed by an FBI agent. But the fabricated confession contained numerous brazen falsehoods that destroyed the federal case. FBI conduct in that case was suffused with deceit. Almost two years after the shooting, and eleven days after Noor Salman’s trial began, the feds belatedly admitted that the killer’s father, Seddique Mateen, had been a paid FBI informant for 11 years, starting in 2005.
Any conservative who has not been hibernating since last October recognizes that the Biden administration and congressional Democrats are pushing federal agencies to crack down far and wide on their political opposition. With Joe Biden denouncing the January 6 protestors as “domestic terrorists,” with Capitol Police acting chief Yogananda Pittman asserting that “tens of thousands” of terrorists or insurrectionists attacked on January 6, and with congressional Democrats howling about traitors who challenged or criticized the 2020 election, federal enemy lists are growing by leaps and bounds. The FBI is among the most opportunistic bureaucracies in D.C. and they will do what they have to do to secure budget increases.
The FBI’s “trust me—this is what I heard” 302 memo charade is a key source of FBI’s control over any American the feds choose to target. The current system tacitly assumes that FBI memos are the ultimate source of truth, far more trustworthy than the mere words spoken by American citizens. Attorney General Eric Holder in 2014 issued a guideline pushing the FBI and other federal agencies to use video recordings of interrogations of suspects. But the FBI has almost completely ignored Holder’s reform. More than 450 police departments in 50 states now routinely videotape interrogations. As the New Orleans Times-Picayune reported in 2011, a “scathing” Justice Department review slammed local police “for not videotaping all of its interviews and interrogations.” Unfortunately, federal judges and Congress permit the FBI to continue to brazenly stack the deck against American citizens.
Will conservatives and Republicans be wise and tough enough to push for curbing the FBI’s vast arbitrary power? Justice Ginsburg aptly warned 23 years ago about “the extraordinary authority…to manufacture crimes.” Too many innocent lives have already been vexed by pretending that bureaucratic memos are infallible.