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FactChecking Trump’s Criticism of the FBI
By Eugene Kiely

Posted on December 4, 2017

https://www.factcheck.org/2017/12/factcheckin...icism-fbi/

President Donald Trump claimed that Hillary Clinton “lied many times to the FBI and nothing happened to her.” In fact, the FBI director told Congress that there was “no basis to conclude she lied to the FBI.”

Trump also left the false impression that the FBI deviated from its standard practice by not putting Clinton under oath when she was interviewed last year about her email use while secretary of state. He claimed it was “the most incredible thing anyone has ever seen.” It’s not incredible or even unusual.

FBI policy does not require its agents to conduct interviews under oath, and it doesn’t matter, anyway, because it is a crime to lie to the FBI regardless of whether an oath is taken.

Three former FBI agents told us that the agency does not conduct interviews under oath.

“I’ve never seen an agent put someone under oath — that’s just not how it operates,” said Michael J. Clark, a special agent for 22 years who now teaches criminal justice at the University of New Haven.

Luke William Hunt, a former FBI agent who teaches criminal justice at Radford University, referred us to the FBI’s Domestic Investigations and Operations Guide, a 258-page manual that details the agency’s intelligence-gathering rules. It makes no reference to placing witnesses, subjects or targets of investigations under oath.

In an email, Hunt told us that “FBI interviews (which ‘may become the subject of court testimony’) are recorded on the ‘FD-302’ form. This simply contains a ‘record of statements made by the interviewee.'”

That’s what happened in Clinton’s case. On Sept. 2, 2016, the FBI released a summary of Clinton’s statements to the FBI.

In a phone interview, Hunt told us he did not experience any instances of FBI agents placing someone under oath during an interview in his seven years at the agency. Stuart N. Kaplan, a former FBI agent for nearly 11 years who is now a lawyer in private practice, separately told us the same thing.

“When conducting interviews subjects/targets and or witnesses are NOT put under oath,” Kaplan said in an email. “As long as an FBI agent properly identifies him or herself and it’s in the official capacity of his job lying to that agent under 18 USC 1001 is a crime.”

Kaplan emphasized that the false statements “must be intentional or intentionally misleading” for the subject to be charged with a crime. Clark noted that the false statement must be “material” to the investigation.

That’s what happened in Flynn’s case, and he now faces up to six months in prison.

As for Clinton, the FBI had “no basis to conclude she lied to the FBI,” as Comey said. But, under the law, if she “knowingly and willfully” made false statements to conceal “a material fact,” then she could have been charged with a crime whether she was under oath or not.

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