Why the FBI doesn’t record interviews

The FBI’s interview of former Trump national security adviser Michael Flynn about his telephone conversations with Russian Ambassador Kislyak renewed a frequent question: Why doesn’t the FBI record its interviews? After all, if a recording of Flynn’s January 2017 interview were available, and not just a heavily redacted form FD-302, there might not be such controversy about whether Flynn lied to agents about the conversation. Despite the fact that recorded interviews can be helpful, there are good reasons the FBI does not record all interviews — even though a 2014 Department of Justice policy states they should default toward recordings.

First, an estimated 75 to 85 percent of a street agent’s work consists of interviewing people. These interviews come in the form of background investigations, criminal and intelligence investigations, source debriefings and other pertinent conversations. While it’s technically possible to record and store all such conversations, it would be a challenge. Next, if the policy was to record all interviews, then we would be in the same imbroglio that we are in with the Flynn case for any FBI interview that is not recorded. Questions would abound about why a non-recorded interview occurred.

Unlike some other law enforcement agencies, the FBI documents via the 302 case report all interviews, whether they are positive or negative. If agents conducted a canvass of a neighborhood in a bank robbery investigation, for example, a separate 302 would be completed for every individual with whom the agents talk, even if nobody saw anything. Other agencies might do one report reflecting that all the contacts were negative, or might not document anything. Many agencies that record interviews restrict them to subject (or suspect) interviews. They do not record witness interviews, and it has been suggested that the FBI do exactly this. 

The problem with this logic is that witnesses sometimes turn into subjects. It would be awkward to stop a witness interview when that happens and suddenly initiate a recording. If agents did not stop to record such an interview, we’d be back to the “every interview must be recorded” policy and the question why an unrecorded questioning came into play.

The best reason not to record interviews is rapport-building. Some of the most important and productive interviews take hours — longer than the typical TV movie in which a detective turns on the recorder, screams at the suspect and extracts a confession within minutes. In real life, an agent might spend significant time with a suspect, developing rapport and going over seemingly innocuous details, before getting to the heart of the matter. Many of these interviews take place in a car, coffee shop or the subject’s office where a recording device is not easily deployed and could hinder the free exchange of information. 

To be honest, there might be things said in a two-hour interview that are prejudicial to either side but irrelevant to the outcome of the interview. If an agent used graphic language to describe what people think about child rapists, is it relevant hours later if, head down and sobbing, the subject sorrowfully confesses to being a child rapist? Probably not. After he confesses, might he hedge on the agent’s request that he provide graphic details about what he did to a child because he knows it is being recorded? If the interview is not being recorded and thus is less intimidating, the agent can write down every detail the subject confesses.

Practically speaking, many extensive FBI investigations consist of hundreds or thousands of interviews. A written summary of most interviews still must be prepared, to allow agents and attorneys to efficiently review the investigation without having to read and re-read lengthy transcripts containing a lot of irrelevant information. If interviews were recorded, the written summaries would have to marry exactly with the recordings or the agent’s work could be impeached.

Finally, when the rule prohibiting FBI agents from recording interviews was instituted, the reasoning mostly was that their testimony under oath is credible and means something to the court and the public. That should still hold true. The FBI has never shied away from dealing with “lack of candor” issues for the sole reason that an agent’s word must be unimpeachable. From day one at the FBI Academy at Quantico, Va., agents are inculcated with the fact that if they ever are found to lack candor, even in administrative proceedings, they can expect to be “removed from the rolls of the Bureau.” There are no desk or administrative assignments for agents who cannot go into court and testify under oath with credibility.

The FBI’s failures — as opposed to mistakes — in the Crossfire Hurricane and Flynn investigations were more than just changing an email to reflect a different set of facts, misleading the Foreign Intelligence Surveillance Act (FISA) court about the existence of exculpatory evidence, texting political beliefs in the context of an official investigation, or scheming to get someone fired because of an interview. 

These failures, by a few former senior leaders, undermined the credibility of FBI special agents to write reports of interviews without having their integrity called into question, and ruined the reputation of an organization that had been built over generations. It is up to the current FBI leaders to regain that credibility for the bureau and all of its agents.

James M. Casey was a law enforcement officer for 32 years, 25 of them at the FBI. He served on the National Security Council in 2004-2005 and retired in 2012 as the Special Agent in Charge of the FBI’s Jacksonville Division. He is president of FCS Global Advisors, an investigative and crisis management firm.

Tags Crossfire Hurricane FBI FBI 302 form Flynn case Interrogation Michael Flynn

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