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Can I Record My Interview With Federal Agents?
The Federal Baseline
The right to record a federal agent exists, in most of the country, before the agent ever arrives at the door. Under 18 U.S.C. 2511(2)(d), federal wiretap law permits the recording of any conversation so long as one party to that conversation consents. If you are the one holding the phone, the microphone, the device of whatever description, you are the consenting party, and the statute requires nothing more.
This is the law as written at the federal level, and it is broader than most people expect. There is no requirement to inform the other party. There is no requirement to announce that a recording is underway. The consent of a single participant satisfies the statute. But the federal statute does not preempt state law on this point.
The complication, which is the only complication that matters in practice, is that federal agents rarely conduct interviews in federal buildings. They sit in kitchens, in offices, in living rooms governed by state recording statutes. The question is whether the jurisdiction where the conversation occurs agrees.
State Recording Laws and Two-Party Consent
Federal law is permissive, but federal agents do not conduct interviews in federal space. They appear at homes and businesses located in states that may impose requirements well beyond what 18 U.S.C. 2511 contemplates. The penalties are not theoretical.
California, Florida, Pennsylvania, Maryland, Massachusetts, Washington, Illinois, Montana, New Hampshire, and several others require the consent of all parties before a conversation may be recorded. If a pair of agents sits at a conference table in a Los Angeles office and the subject of the interview records the conversation without disclosure, that subject has committed a criminal act under California Penal Code Section 632, regardless of what federal law permits. The state statute governs the conduct within its borders.
And here the asymmetry reveals itself. Even if your recording was obtained in violation of state law, federal prosecutors can still introduce it as evidence against you. The exclusionary rule constrains law enforcement. It does not constrain defendants who incriminate themselves. A recording made in Florida without the agents’ consent violates Florida’s two-party consent statute, and the person who made the recording can be charged for making it. Florida treats the violation as a felony.
The FD-302 and the Record That Does Not Exist
For most of the Bureau’s history, the official position was that recording interviews would impede the ability of agents to conduct effective questioning, a rationale that presumes the questioning is more effective when no objective record of it survives. The FBI operated under a presumption against recording from the era of J. Edgar Hoover through the early decades of this century, and agents who wished to record required supervisory approval that was, by all available accounts, seldom granted.
In 2014, Attorney General Eric Holder announced a policy shift: a new presumption in favor of electronic recording for custodial interviews conducted by the FBI, DEA, ATF, and U.S. Marshals Service. The policy was formalized in a memorandum from Deputy Attorney General James Cole and took effect in July of that year. It was, by any measure, a significant departure. The policy did not extend to non-custodial interviews, which constitute the vast majority of federal interviews conducted in practice.
What happens in a non-custodial interview is this. Two agents arrive. One asks questions. The other takes handwritten notes. After the interview concludes (sometimes the same day, sometimes not), the note-taking agent composes a summary. The summary becomes a Form FD-302, written in the agent’s language, structured by the agent’s priorities, completed on the agent’s timeline. An agent out of the Newark field office, in a matter we handled last year, completed the 302 eleven days after the interview. The 302 is not a transcript. It is a reconstruction, and it functions the way a deposition transcript captures cadence: selectively, and with the recorder’s interests shaping every line.
A 302 drafted three weeks after a conversation carries the same evidentiary weight as one drafted the same afternoon. The witness whose words were summarized does not review the document, does not sign it, and in most cases does not learn what it contains until after an indictment has been returned. If the 302 states that the witness said “March” when the witness said “I think maybe around March,” the distinction between a definitive statement and a hedged recollection has been erased. The definitive version becomes the official record. The old presumption was never entirely abandoned; it was relocated to a narrower category and left to operate there with less scrutiny.
Motions to suppress statements on the basis that they were not recorded have gained traction in certain districts, though the outcomes remain inconsistent. I am less certain than I would prefer to be about how far that trend extends outside the circuits where it has produced written opinions. Whether the court intended this outcome or merely permitted it to persist is a question the policy itself does not answer.
18 U.S.C. 1001 and the Actual Risk
The recording question is a distraction from the statute that does the real damage. Under 18 U.S.C. 1001, it is a federal crime to make a materially false statement to a federal agent in any matter within the jurisdiction of the federal government. The penalty is a term of imprisonment not exceeding five years.
The statement need not be made under oath.
It need not be made in a formal setting, or in response to a formal question, or with any awareness that the conversation constitutes an interview at all. Martha Stewart was convicted under this statute, not for the insider trading the government was investigating, but for statements made during the investigation itself. She was not convicted of the underlying conduct. Michael Flynn entered a guilty plea under the same provision. In both cases, the agents (who, it should be noted, had already reviewed bank records, communications, and third-party statements before the first question was posed) were not seeking information. They need the subject to say something inconsistent with what the file already contains.
In something like two thirds of the cases our office has reviewed over the past several years, the client’s first mistake was not the statement itself but the decision to sit for the interview without representation, often at the kitchen table, often without having told anyone else what was happening, and almost always under the impression that cooperation would resolve the matter before it became a matter at all. The interview is voluntary. No one disputes that. The problem is that “voluntary” describes the form of the encounter, not its function, and the function is the production of a prosecutable statement.
Whether a recording exists is irrelevant to the operation of Section 1001. The statute criminalizes the false statement. A recording merely preserves it with greater fidelity. The recording would have changed nothing about the charge.
What a Recording Can and Cannot Accomplish
A recording is not worthless. In a one-party consent state, a clear audio file can serve as a check on the accuracy of a 302, and in the rare case where the government’s summary materially departs from what was actually said, the recording provides a basis for challenge. That is a real benefit, and it would be dishonest to dismiss it entirely.
The difficulty is that most people who record federal interviews have already decided to participate in them. The recording addresses a secondary problem while leaving the primary one intact. A recording preserves words, not context, and context is what federal prosecutors control. I am less certain than the preceding paragraph might suggest about how much weight a recording carries in front of a jury that has already heard an agent testify.
We counsel clients to decline the interview, or to insist on the presence of an attorney before any conversation takes place, recorded or otherwise. An attorney can negotiate the terms under which an interview occurs, can object in real time, can ensure that the 302 is reviewed before it is filed. A recording is a tool. Representation is a structure. When a client calls and asks whether they should record the interview, the answer we provide is that they should not be in the interview at all without counsel present. That is the call where the diagnosis begins, and it costs nothing to make.