Every day, it is getting more difficult for the FBI to persuade Americans that it is fighting “a never-ending battle for Truth, Justice, and the American Way.” Every time the FBI is caught doing wrong, it doubles down, claiming to be pure and unspotted. For example, after suffering heavy criticism of its unprecedented raid on former President Trump’s home, FBI Director Christopher Wray responded: “Every day I see the men and women of the FBI doing their jobs professionally and with rigor, objectivity, and a fierce commitment to our mission of protecting the American people….”
The reality of the FBI is far different — and far more disturbing — than the image the FBI wants to project, especially in its commitment to “Truth.” As noted liberal Alan Dershowitz bluntly puts it in a recent interview, “The FBI’s work model is to lie to people, to tell them they have more evidence than they have, to tell them that their friends have decided to cooperate. Lying is very much a part, unfortunately, of dialogue between FBI agents and defendants.”
The FBI probably would not deny Dershowitz’ charge that it lies but would explain that it lies only to get “bad guys” to tell the truth. Even assuming it is right for the FBI to lie to persons being interrogated, that’s not the end of the story. The FBI also lies to prosecute Americans that are perceived as a threat to the ruling class. Here’s how it does it.
Unlike local law enforcement, which often videotapes its interviews of suspects, the FBI has a policy not to record the interview. Instead, one agent takes notes on a “Form 302,” while another asks the questions. Why would that be? Certainly it’s not a lack of resources, for if local police have the technology to conduct video and audio recordings, the FBI could do the same.
One reason was detailed in a 2006 internal FBI memo. The Bureau is afraid that if a jury was allowed to see and hear the FBI’s deceptive interrogation tactics, the jury might distrust the FBI more than the defendant. As the FBI report put it:
[L]awful 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.
Thus, writes civil liberties lawyer Harvey Silverglate, “rather than risk such juror skepticism in response to a verbatim recording, the FBI feels that a jury will more likely be led to the FBI’s version of the truth by reading an FBI agent’s Form 302 than by listening to the actual interview.”
Even beyond its effort to withhold information from jurors is the FBI’s desire to be able to prosecute those it chooses under a very dangerous federal statute — 18 U.S.C. Section 1001 — the federal false statements law. That statute makes it a felony, punishable by up to five years in prison, to make a material misstatement to any member of the federal government.
If interviews are recorded, the defendant can only be charged with lying based on the actual words that come out of his mouth. However, if the only evidence of what the defendant stated is in the form of an FBI agent’s written notes on a Form 302, he can be prosecuted and convicted for what the agent wrote down — which may be very different from what the defendant said. And if the defendant had been truthful, there is no recording available for him to use in his defense.
Lying to suspected criminals is bad enough, but the FBI has been exposed lying to federal courts, lying to Congress, and even falsifying documents in its political war against Donald Trump.
On August 19, 2020, former FBI lawyer Kevin Clinesmith pleaded guilty to falsifying an email used in a sworn affidavit to convince the Foreign Intelligence Surveillance Act (“FISA”) Court to authorize it to surveil Trump campaign official Carter Page as a suspected “Russian agent.” The FBI had received an email proving that Page was a source for the CIA, not Russia, but Clinesmith added the words “not a source” to completely reverse the meaning of the email, and trick the FISA judge. This pillar of FBI virtue pleaded guilty, getting probation, and community service.
FISA judge Rosemary Collyer blasted the FBI for its deliberate deception. “[R]epresentations made by FBI personnel turned out to be unsupported or contradicted by information in their possession,” she wrote. In other words, they intentionally deceived the court. “The FBI’s handling of the Carter Page applications…was antithetical to the heightened duty of candor,” Judge Collyer added.
The FBI lied to the Senate Judiciary Committee. In a scathing rebuke, Senator Lindsey Graham stated that “[t]he FBI did to the Senate Intelligence Committee what the Department of Justice and FBI had previously done to the FISA Court: mischaracterize, mislead and lie.”
Former FBI director James Comey denied for years that the FBI had spied on the Trump campaign. “So it was all lies….No spying on the campaign,” Comey tweeted, adding in an op-ed piece that “those who attacked the FBI for two years should admit they were wrong.” But the details of the FBI’s Crossfire Hurricane investigation into the 2016 Trump Campaign have been widely exposed.
Juries and federal district court judges historically just have assumed FBI agents are telling the truth and have convicted defendants based on what the agent testified. But as FBI lying is exposed, fewer and fewer jurors will accept the testimony of an FBI agent at face value. There is a term for law enforcement officers lying during testimony that originated in New York City — “testilying.” Increasingly, that term is used to describe the sworn testimony of FBI agents.
In August 2020, several House Republicans suggested that the FBI may have to be dismantled if it continues to use investigation and prosecution as political weapons. We are not holding our breath, but let’s hope the day will come when the FBI’s days of lying to protect the Deep State are ended, once and for all.