Dec. 28, 2017
In late January, George Papadopoulos did what a lot of Americans do when FBI agents ask for a few minutes of their time — he agreed to talk. It’s a decision he likely regrets, because in October the former adviser to President Donald Trump’s election campaign pleaded guilty to making false statements to the FBI. He is now a key figure in special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.
The court files in the Papadopoulos case say little about the conditions of his chat with the two FBI agents. We don’t know how long it lasted, where in Chicago it took place, what its tenor was, or whether Papadopoulos was aware the agents probably knew the answers to most questions they asked. One thing, though, is clear: Papadopoulos engaged in a form of self-harming behavior that defense lawyers always advise against — saying “yes” when a pair of friendly FBI agents knock on your door and ask to chat.
His interrogation was recorded but the transcript has not been released, so it’s impossible to know precisely what the FBI agents might have said that gave Papadopoulos the impression it would be in his interests to talk and to lie. But in another high-profile case, involving former NSA contractor Reality Winner, the government released a transcript of the interrogation. It provides a verbatim example — and a rare example — of how FBI agents ingratiate themselves with unsuspecting suspects and intimidate them into saying things that bring doom upon them.
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.
“Because warnings are only required prior to custodial interrogation, one way to minimize the impact of Miranda on investigations is to try to conduct interrogations whenever possible in noncustodial settings (such as the suspect’s home or on the street, without arrest-like restraints),” notes an article in Police Magazine, which caters to the law enforcement community. The article bore the headline “How to talk to suspects without Mirandizing.”
There’s a problem with that kind of advice — the presence of law enforcement officers can turn homes and sidewalks into coercive environments, making the distinction between “custodial” and “noncustodial” a murky if not artificial one. The Winner transcript, which was released in September, offers an unusual look inside one of these home interrogations. In its early we’re-on-your-side phase, the interrogation pivoted on Winner’s love of dogs and her CrossFit workouts.
About a dozen FBI agents arrived at Winner’s rented house in Augusta, Georgia, on the afternoon of June 3, as she returned from grocery shopping.
“The reason we’re here today is that we have a search warrant for your house,” one of the agents told her, according to the transcript.
“OK,” she replied.
“All right,” Special Agent Justin Garrick said. “Do you know what this might be about?”
“I have no idea,” Winner replied.
“OK, this is about possible mishandling of classified information.”
“Oh my goodness,” Winner responded.
The agents soft-pedalled the reason for their visit. It can be relatively innocuous, in the eyes of the law, to mishandle classified information — it might not even be a crime, if the information is not too serious and the reasons for mishandling it not too nefarious. But this wasn’t, in the eyes of the FBI, an innocuous case. Garrick, who asked most of the questions, is a specialist in espionage and counterintelligence, according to court documents. The government’s charging documents make clear that at the time of her interrogation, Winner was suspected of what the government was treating (probably cynically) as a very serious offense that jeopardized national security. The interrogation ended with Winner being arrested and charged under the draconian 1917 Espionage Act.
The agents did not mention the Espionage Act while they talked with her. And they did not hint at the possible prison-for-a-decade consequences of what they suspected she had done: mail a classified NSA document to a media outlet. On June 5, the day Winner’s arrest was belatedly announced, The Intercept published a story based on a leaked NSA document detailing Russian attempts at cyberattacks against the U.S. election infrastructure. Though The Intercept has no knowledge of who sent the document, several publications reported that Winner mailed it to The Intercept, which has published a statement about its role in the case.
Her interrogation on June 3 began innocently enough. The first few minutes revolved around making her house safe for agents who would search it, which meant making sure her dog wouldn’t bite anyone, and making sure her guns (she had three) were secured. The conversation then took a decidedly casual turn.
“How long have you had your dog?” Garrick asked.
“She’s actually a foster,” Winner replied. “I’m rehabilitating her so hopefully she can get adopted later on.”
“How old is she?”
“Oh, we don’t really know. She’s one of those.”
“Yeah,” Garrick said. “One of my dogs was a rescue and when I got him … I was the only guy who could touch him.” He later added, “If you can tell, we’re all dog people.”
Garrick mentioned that his dog urinated “all over the place” at the outset, but eventually got used to its new home and started licking all visitors. Winner replied that her dog had been kept in a kennel and neglected her whole life. As they chatted, the other FBI agent, Wallace Taylor, offered to put her groceries into her refrigerator.
The conversation turned to her service in the Air Force. Once more, the agents employed convivial banter. When Winner mentioned that she was stuck for four years in a Maryland posting, one of the FBI agents said, “I can beat you. You know where my first Air Force assignment was?”
“What?” Winner asked.
“Minot, North Dakota.”
They made jokes about the cold weather — the transcript is interspersed with parenthetical descriptions of laughter — and then Garrick spoke about one of his FBI postings.
“I was seven years in D.C., and that was about six and a half too long,” he cracked.
“Oh yeah, D.C.,” Winner said.
“They keep asking if I want to go up there,” Garrick said. “I’m like, ‘Uh, no. No. No thank you.’ I’m done with that.”
Garrick inquired about her CrossFit workout routine.
“I did it for like six months, and I hurt myself,” Garrick offered. “Just every single day was pain.”
The transcript of their CrossFit conversation goes on for more than two pages, with idle chat about box jumps and stress fractures and bench pressing (“So power lifting … what’s your favorite stuff?”). It’s a classic tactic of softening up a target, creating a false sense that the agents are your friends rather than, as often turns out to be the case, soon-to-be witnesses against you in court.
“You’re trying to get information from somebody, so being confrontational, bellicose, threatening — for the most part is counterproductive,” notes Jeffrey Danik, a retired FBI agent who spent nearly three decades investigating white-collar crimes, violent crimes, and terrorism. “You can’t let them start thinking that this is some kind of confrontational, confinement-ending interview.” That goes for all types of suspects, he said, whether a bank teller who purloined $100, or a serial rapist with a dozen victims. “It’s how 99 percent of them go,” Danik told me. In an email, he added, “When they are friendly, which they usually are, it really defuses people’s anxiety.”
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.
“Good interviewers have an instinct to find some connection with the person you are interviewing and try to make them comfortable,” said Mike German, a retired FBI agent who is now a fellow at the Brennan Center for Justice. “You want to have the person you’re interviewing in a cooperative mood. People tend to cooperate with people they have some positive feeling for. The ability to make a personal connection in a short period of time is a valuable talent.”
Much of the time, it’s a strategy devised in advance by agents who know what topics will appeal to the suspect they are trying to loosen up.
“The advantage for an FBI investigator is that you have a tremendous amount of information available to you, much more than the person you’re talking to,” German said. “I’m sure they knew a tremendous amount about her and what those areas of commonality were.” He added, “A good interviewer is an interviewer who has done his homework.”
The tactic of disarming a suspect during a “noncustodial” interrogation was used in another prominent leak case a few years ago. In 2015, I wrote about the interrogation and imprisonment of Stephen Kim, a State Department official who was accused of talking about a classified report on North Korea with a journalist from Fox News. Kim told me that the FBI agents were friendly when they arrived at his State Department office. In his job as a North Korea analyst, he had lots of contact with intelligence and law enforcement officials, so the visit wasn’t unusual. “It wasn’t like suddenly they came in and, boom, laid it on me,” Kim explained. “They did not say, ‘We are investigating a leak.’ They did not say, ‘We are investigating you.’ … I didn’t know why they were there.”
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.
The exact methods of the FBI’s preliminary interrogations are somewhat mysterious, because the bureau’s agents are not required to record them. In the Obama era, the Department of Justice issued a new policy that required agents to record custodial interrogations, and transcripts of them have been introduced as evidence, but the guidelines do not cover noncustodial questioning. The combination of recording one and releasing the transcript, as was done in the Winner case, is extremely unusual, according to the FBI agents I talked with.
The transcript of Winner’s interrogation reveals the hot-cold nature of these conversations. After the relationship-enhancing questions about her workout routine, the agents got around to her job as an NSA contractor in Augusta. They asked whether she would access a document she didn’t need to access for her job. She said she wouldn’t.
“OK,” Agent Garrick said. “Reality, what if I said that I have the information to suggest that you did print out stuff that was outside of that scope?”
“OK,” Winner replied. “I would have to try to remember.”
“Reality,” the other FBI agent said, “you know, we obviously know a lot more than what we’re telling you at this point. And I think you know a lot more than what you’re telling us at this point. I don’t want you to go down the wrong road. I think you need to stop and think about what you’re saying and what you’re doing. You know, I think it’s an opportunity to maybe tell the truth. Because telling a lie to an FBI agent is not going to be the right thing.”
Winner then said she had printed a document, but put it in her office’s “burn bag,” where classified material is placed to be securely destroyed.
“OK,” Garrick replied. “What if I tell you that that document, folded in half, made its way outside of NSA? It made its way out in an envelope, postmarked Augusta, Georgia. See, things are starting to get a little specific.”
Winner was cornered, literally. The agents were interrogating her in a small room at the back of her house and were blocking the exit, according to a statement Winner made to the court in late August (the government claims the exit was not blocked). She did not feel free to leave the room or stop the interrogation. The scenario — of being apparently trapped — is familiar to Kim, who eventually pleaded guilty and served 11 months in prison. Kim told me that he was disoriented during his interrogations. He had never been the target of an investigation and didn’t know what to do — he didn’t realize, for instance, that he should stop the questioning and ask for a lawyer. His experience, and Winner’s, demonstrate how a coercive environment can be created without handcuffs or prison bars.
“It was surreal,” Kim told me. “What are you supposed to feel? You don’t feel anything. You’re dumbfounded. Have you ever been hit really hard, like playing sports, or you ran into a pole, or somebody hit you? At first you don’t know what hit you. You’re kind of stunned. … I didn’t know what was happening.”
Winner, in her August 29 statement, was even more direct.
“During the entirety of my encounter with law enforcement on June 3, 2017,” she stated, “I was never told I was free to leave and, in fact, given the circumstances, I never felt free to terminate the interrogation or leave my home.”
The transcript shows the agents, as they coaxed Winner into purportedly confessing a crime, suggesting that the matter wasn’t all that serious. “I don’t think you make it a habit,” Garrick told her, referring to leaking documents. “You just messed up.” Taylor downplayed it further. “What we both think is that maybe you made a mistake,” he said. “Maybe you weren’t thinking for a minute. Maybe you got angry. … If that’s the case, then that makes us feel a little better, knowing that we don’t have a real serious problem here.”
As the government’s filings in the case make clear, however, they are contending that Winner knew she could cause “exceptionally grave damage” to national security by leaking the classified document. Winner’s lawyers have noted that the government’s contention is dubious because so much of what is classified is actually innocuous and should not be classified in the first place; it appears the government is cynically exaggerating the potential impact of Winner’s alleged crime, to make an example out of her and intimidate other would-be leakers. Once Winner was arrested, the government even argued against her being released on bail, because she might flee the country and spill more secrets. “The defendant has shown an aptitude for deception and concealment, and she has the capacity to cause further harm to U.S. national security if released,” the prosecution argued, so far successfully.
Contrary to what the FBI told Winner, she was facing an enormous amount of trouble. The irony and unfairness is that FBI agents are not prosecuted for making false or misleading statements to the unaware citizens they interrogate.
Editor’s note: The Intercept’s parent company, First Look Media, has taken steps to provide independent support to Winner’s legal defense through the Press Freedom Defense Fund. First Look also contributed $50,000 in matching funds to the Stand With Reality campaign.