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When the Feds Call: Lessons Learned from the Martha Stewart Case

Well, Martha Stewart has been convicted, as someone said, of covering up a crime that the feds couldn’t prove had been committed. More specifically, she was convicted (generally speaking) of making false statements to federal investigators. What kind of practical lessons does this offer for day-to-day life in the business world?

Think Carefully Before Agreeing
to be Interviewed by Government Agents

Several commentators have said that any more, you’d have to be nuts to voluntarily talk to any government agent about anything — and that this will discourage people from cooperating with government investigations. See, for example, this nice round-up in Professor Bainbridge’s blog.

Tape-Record Your Own FBI Interview?

Boston attorney Harvey Silverglate (see this bio) writes, in a letter to the WSJ ($), that:

[S]ome federal agencies, including the FBI, have a policy or practice of intentionally not tape recording even crucial interviews. Instead, agents often conduct interviews in pairs, with one agent doing the questioning and the other taking notes.

This later often pits the uncorroborated word of the interviewee against the report submitted by the agent, when any question arises as to what the person said or, equally crucially, what the agent’s question was that the person was seeking to answer. Without a verbatim record of the interview, the agent’s report as to what the interviewee said is usually considered authoritative, despite any errors or spin.

The lesson is that it’s easy to be convicted not for what you say, but for what an agent claims you said.

(Emphasis and paragraphing added.) Lesson: If you do voluntarily agree to be interviewed by any kind of federal- or state government agent, consider doing the following —

1. preferably, tape-recording the interview. To reduce the chances of inadvertent privacy violations, ideally the recording should include your oral disclosure to the interviewer that you are recording the interview, as well as the interviewer’s oral acknowledgement of that fact; or

2. as a distant second choice, having a friend sit in on the interview and take notes. But remember, your friend’s notes may be incomplete or mistaken in places. And, the friend may well have to testify both (i) as to his-or-her recollection of the interview, and (ii) as to the authenticity of his-or-her notes. So your friend may end up having to hire his-or-her own lawyer, which I’m sure s/he’ll be delighted to do.

Don’t Lie, Either Explicitly or by Omission

Obviously the best way to stay out of trouble in this area is simply, don’t lie. You’ll still have some practical problems even if you try as hard as you can to tell the truth. First, you may not remember everything right then and there, and your omission of a material fact might later be regarded as a lie. Second, you might remember things incorrectly; it happens. Third, as noted above, unless you’re recording the interview yourself, your interviewer may claim — through misunderstanding or otherwise — that you said something other than what you actually said.

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