At a recent Science Café of which I am part of the organizing committee, we had two FBI agents to talk about how they track white-collar crime such as those involving Medicare and Medicaid fraud, with physicians inflating the charges for treatment. The two agents were very friendly and pleasant and before and after the session I had an interesting chat with them about their work. But that same friendliness can be a trap if you happen to be in their sights for any investigation.

In the US, people who are being questioned about a possible crime are required to be first informed of their Miranda rights, that they have the right to remain silent and have access to a lawyer. Failure to do so can result in anything they say being ruled as inadmissible. But at the same time, telling people their Miranda rights puts them on alert and less likely to be forthcoming.

So the FBI often has ‘friendly’ discussions with suspects so that they can claim that their questioning was in a ‘non-custodial’ setting that did not require the reading of the Miranda rights, but then use the information they get against the suspect. Peter Maas says that this is precisely what they did with Reality Winner, the person accused of leaking classified information to the media, and George Papadopoulos, who has pleaded guilty to making false statements to the FBI as part of the Robert Mueller investigation.

The interrogations of Winner and Papadopoulos were what the FBI likes to call “noncustodial,” so they were not read their Miranda rights — because, the FBI claims, they were not arrested or detained at the time of the interrogation. (Winner’s lawyers have argued in court filings that she was effectively detained and should have been Mirandized.) By avoiding the obligation to inform suspects of their right to a lawyer and the right to stay silent, the FBI makes it easier to get Americans to say things — whether truths or lies — that will be used against them. The Fifth Amendment protects people from testifying against themselves, of course, and the Sixth Amendment provides the right to legal counsel, but law enforcement authorities get around these constitutional protections by contending that some interrogations are noncustodial. The result is that suspects are enticed into talking before they realize the jeopardy they face and the rights they possess.
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The feigned friendliness of FBI agents is not just a matter of getting people to loosen up. One of the government’s briefs in the Winner case argues that by being “exceedingly friendly” and always keeping their voices at a “conversational level” and carrying “no visible weapons,” the agents acted in a way that created a noncustodial environment. It’s a law enforcement twofer: By acting polite, law enforcement agents persuade people to talk and lift from themselves the obligation to inform people of their right not to talk. In a way, FBI interrogations are akin to con games, with the mark played by ordinary citizens whose interests are not actually served by chatting with law enforcement agents pretending they’d just like to clear up a minor misunderstanding.

The article gives the transcript of the conversation that shows how the FBI agents maneuvered Winner into revealing things.

Maass described how they did this previously with another leaker Stephen Kim.

Kim had met and talked with James Rosen, the Fox reporter, but he lied to the FBI agents when they finally got around to asking about it. The agents did not indicate they knew of the contacts, so Kim thought he could get away with a fib — why draw attention to what he thought was an everyday infraction that the agents didn’t appear to be aware of? It was a mistake. Kim would later be charged not only with a violation of the Espionage Act, but also with lying to the FBI. The lawyer Kim hired once he realized he was in trouble, Abbe Lowell, was distressingly familiar with the FBI’s tactics of using noncustodial interrogations to get people to say things that no lawyer would let them say.

“He was asked questions that were, for all intents and purposes, a setup,” Lowell told me for the 2015 story. “The government already knew that Stephen had had a conversation with the media. They already knew that he had had access to the information that they believed to have been classified. They were basically setting him up.”

Lowell, a high-profile attorney in Washington who now represents Jared Kushner, mentioned an old adage about criminal defense attorneys. “Many of them have a fish that they mount on the wall,” he said. “These lawyers put a plaque under the fish, and in words or effect that plaque will say, ‘If I hadn’t opened my mouth, I wouldn’t be hanging here today.’”

When I mentioned this to German, the former FBI agent, he told me about the “five words” motto he learned when he worked cases against neo-Nazis. Members of the neo-Nazi movement were instructed by their leaders to only say five words to law enforcement: “I have nothing to say.” They rarely followed the instruction, however.

“They all had plenty to say,” German said. “I think it’s just human nature to feel like you can talk your way out of it or minimize your conduct in a way that can help you. What any lawyer will tell you is, ‘No you can’t. There’s nothing positive you can do for yourself in that interaction, and in fact, that’s why you need to get legal representation before talking with law enforcement.’”

It might seem there is no harm done when FBI agents persuade or cajole people to confess to crimes. But there is a long record of law enforcement officers coaxing false confessions out of people. A study of exonerations in the United States between 1989 and 2004 found that 15 percent of the people who were exonerated had confessed to crimes they did not actually commit. And there is an equally long and disreputable record of the government incarcerating people for a far longer time than their confessions would justify.

So the advice is that if you are ever questioned by the police or FBI in any setting, get a lawyer before you say anything, even if you are not Mirandized.