The never-ending, always-expanding saga surrounding the federal government’s investigation and prosecution of President Trump’s first National Security Advisor, Michael Flynn, is truly extraordinary. The case began simply enough with a guilty plea to a false statement charge under 18 U.S.C. § 1001 under a cooperating plea agreement which enabled Flynn (and, reportedly, his son) to avoid more serious charges. At the time of the plea, there seemed to be no doubting Flynn’s admission of guilt to lying to FBI agents during an informal interview, especially since Trump had already fired him for telling similar lies to Vice President Pence. And the case proceeded all the way to a sentencing hearing, with both Flynn and the prosecution asking the Court to sentence him even though his cooperation was continuing, only to abort the hearing when the trial judge suggested his sentence might be harsher than both parties anticipated.
But since that aborted hearing, the case has taken several remarkable turns, with the Attorney General appointing a geographically remote U.S. Attorney to review the case, Flynn (through new counsel) moving to withdraw his guilty plea based on allegations of prosecutorial misconduct, the Department of Justice not merely consenting to such a withdrawal but affirmatively moving to dismiss the case with prejudice, the trial judge appointing amicus counsel to oppose the DOJ’s motion, and Flynn moving the appellate court for a writ of mandamus ordering the trial judge to grant the DOJ’s dismissal motion and replacing that judge from any further proceedings. These unprecedented filings raise fascinating constitutional and other legal issues, as well as serious questions of political influence and motivations tainting both the underlying investigation and the DOJ’s recent reversal of position. While fascinating, however, those issues and questions are, for the most part, limited in effect to the unique circumstances of the Flynn case.
With one notable exception. The ultimate inquiry in this – or any other – false statement prosecution under section 1001 is – or at least should be – whether the defendant lied about a material fact to the government. This, in turn, depends primarily on the record memorializing what was said during the underlying interview. Given today’s technological means of instantaneously and flawlessly recording any setting (much less such a premeditated, controlled setting) by video, audio, transcript and otherwise, one would assume that such interviews would be recorded in the most pristine and incontrovertible manner available.
Wrong. To this day, the federal government continues to employ the most unreliable means of recording interviews – handwritten notes taken by an agent, followed by a typed report based loosely on those notes known as a “302,” reflecting the number of the FBI form on which the report is typed. Even when performed properly, this archaic practice guarantees inaccuracy and invites manipulation, resulting in unfairness and injustice.
In a typical government interview, one or more attorneys or investigators ask the witness questions, and one agent takes handwritten notes. Within five days after the interview, the 302 is supposed to be typed up. This process has governed interviews since J. Edgar Hoover became FBI director almost 100 years ago. Whatever its merits may have been a century ago, its flaws are too numerous to justify its continuance, especially when compared to the far superior alternatives that are readily available today.
First, taking handwritten notes to record a free-flowing conversation is inherently difficult. People talk faster than anyone can write, especially agents who are not typically trained in shorthand. And most government interviews involve complex topics, which adds understanding to the problems of listening and writing simultaneously.
Second, there are no requirements governing such handwritten notes. Agents need not write down everything that is asked or answered. Indeed, the taking of notes itself is not required. The U.S. Attorney’s Manual instructs prosecutors merely that, “generally speaking, witness interviews should be memorialized by the agent,” without mandating any particular method of memorialization. It suggests only that prosecutors and agents “should discuss note-taking responsibilities and memorialization before the interview begins,” without setting any guidelines. And the federal courts have thus far declined to answer whether the government can purposely refuse to take notes during witness interviews.
Third, such notes normally do not purport to be verbatim recitations of the questions asked or the answers given. Rather, they are commonly interpretations of what the speakers intended to say or mean. Such interpretations necessarily inject the notetaker’s subjective beliefs into the notes’ substance.
Fourth, even if the notes are pristine, transforming them into an accurate and comprehensive summary of the interview is challenging and unreliable. Interviews veer from topic to topic, witnesses meander during responses or fail to answer the questions posed, their responses beget unscripted inquiries in unanticipated areas, and evasive responses which seem clear when made can turn incomprehensible when reviewed.
Fifth, the notes do not dictate the 302’s substance. Memory also plays a significant part in preparing the 302. And memories are inherently faulty, especially as more time elapses between the interview and the 302’s preparation.
Finally, there are no checks and balances. Neither the witness nor his counsel (if any) has any opportunity to review the 302, or to offer input into its substance, prior to its finalization. Indeed, the witness may never see the 302, and if he does, it may not be until years later – when his ability to recall the interview, much less to challenge the 302, is severely compromised.
Despite their inherent untrustworthiness, 302s are incredibly powerful tools for prosecutors. They are the only (purportedly) contemporaneous record of the interview. They are the “official” record of the interview. They appear on a government form and are signed by government agents. Juries inherently believe in their accuracy and credibility.
Moreover, 302s not only influence the course of criminal investigations and charging decisions, but also the truth-seeking process. Consider, for example, an executive who is confronted at home, without advance notice, by government agents investigating allegations of wrongdoing at his company. Having no knowledge of any such wrongdoing, the executive agrees to answer the agents’ questions without counsel. A year or two later, the executive receives a subpoena to testify before a grand jury. He tells the prosecutor the same thing he previously told the agents, only to be confronted with a 302 from that long-ago interview that differs from what he told the agents in ways that arguably implicate others. The executive now finds himself under enormous pressure to testify consistently with what was written in the 302, even if he believes or recalls the 302 to be incorrect. If he testifies differently than the 302, he exposes himself to a felony charge for lying to the grand jury and/or for making a false statement to the agents. So, he instead decides to testify consistently with the 302, even if he disagrees with its contents. As a result, the truth-seeking function is distorted, and innocent colleagues are implicated.
So why doesn’t the federal government employ modern technologies to record witness interviews accurately and completely? Because it does not have to do so, and it benefits from not doing so. Indeed, the official DOJ policy is not to record witness interviews. A 2006 FBI memorandum claimed that recording interviews would impede the FBI’s ability to question witnesses successfully. (That same year, the New Jersey Attorney General’s Office mandated that all custodial interrogations be electronically recorded.) In 2014, DOJ issued guidance creating a “presumption” that the FBI would record interviews of witnesses in custody and “encourag[ing] agents and prosecutors to consider electronic recording in investigative or other circumstances when the presumption does not apply.” But such encouragement appears to have largely fallen on deaf ears.
And when the 302 process is abused, the truth-seeking function of the justice system is irreparably damaged. To return to the Flynn case, the underlying interview occurred on January 24, 2017. To this day, some 40 months later, the defense has never seen the original 302. Documents recently disclosed in the outside U.S. Attorney investigation of the case reveal that on February 10, 2017 – two weeks after the five-day deadline for preparing the 302 expired – the FBI agent who conducted the interview texted another FBI official who was not present at the interview a significantly edited version of the original draft prepared by the notetaking agent, accompanied by the message, “I was trying not to completely re-write the thing so as to save [that agent’s] voice.” That the two correspondents were involved in an extramarital relationship and had previously expressed anti-Trump sentiments to each other has consumed most of the media’s attention, but the more fundamental question is why the interrogator was substantively editing the notetaker’s draft – with the apparent input of a non-participant – in the first place.
Even more troubling, when Flynn subsequently appeared for his aborted sentencing in December 2018, the 302 disclosed was not the first-person version prepared by the notetaker, as edited by the interrogator, but an entirely different report of any entirely different interview, i.e., a report prepared by another FBI agent who interviewed the interrogating agent on July 19, 2017 – six full months after the Flynn interview in January 2017. And even then, that brand new 302 seemed to dispel – rather than prove – that Flynn had lied during the interview six months before the agent interview the 302 memorialized, stating (among other exculpatory statements) that Flynn’s interrogator and note-taker “both had the impression at the time that Flynn was not lying or did not think he was lying.”
Perhaps worst of all, the government now claims that the notetaker’s original, never-produced 302 has disappeared. Such a claim would be highly dubious in the most routine of prosecutions. In this incredibly charged, politically saturated case, it is simply implausible.
Over fifty years ago, when Congress gave federal and state law enforcement authorities the power to intercept wire communications between unknowing parties, it required that such intercepted communications be electronically recorded. Congress did not want law enforcement agents to listen to such conversations and later write down what they thought they heard. It instead insured that judges and juries – as well as the intercepted parties – not only would know precisely what was said, but also would hear exactly how it was said. It is beyond time for Congress to mandate that federal agents do the same thing when they interview witnesses and suspects as they do when listening to intercepted conversations – record them electronically.