The interview question focused on an agent in the Special Counsel’s office, Peter Strzok, and the fact that he was taken off the the investigation because of alleged anti-Trump, pro-Clinton text messages or other communications. Congress has requested information from the Department of Justice about Agent Strzok, who was also apparently one of the agents who interviewed Hillary Clinton regarding the matter of her personal email server and who allegedly watered-down the FBI’s conclusions about her.
On a more practical note, what about FBI agents’ text messages (or emails or posts) and their use at trial?
A leading case is United States v. Suarez, A2010 WL 4226524 (D.N.J. Oct. 21, 2010). In Suarez, the FBI agents received no instructions to preserve text messages, resulting in an adverse inference instruction at trial. Unfortunately for white-collar defendants, Suarez, while soundly reasoned, has not gained broad traction.
A problem is finding a broad source of authority for discovery of electronic material in criminal cases (as opposed to civil). Although the Federal Rules of Criminal Procedure do not specifically address electronically-stored information, the Federal Rules of Civil Procedure do so extensively and have done so since their amendment in December of 2005. As early as 2008, now-retired Judge John Facciola, a jurist often quoted and relied upon across the country on ESI issues, found that “[i]t is foolish to disregard [the Federal Rules of Civil Procedure] merely because this is a criminal case, particularly where, as here, it is far better to use these rules than to reinvent the wheel when the production of documents in criminal and civil cases raises the same problems.” United States v. O’Keefe, 537 F.Supp. 2d 14, 19 (D.D.C. 2008).
The Department of Justice, not surprisingly, disagrees.
Were a person indicted by the Special Counsel to go to trial, he or she would be most interested in the content and timing of Agent Strzok’s text messages. At a minimum, if the agent were to testify, the texts would be so-called “Jencks material” (that is, statements of a Government witness).
Perhaps more importantly, the texts might be “Giglio material” (that is, information going to the credibility of or otherwise supporting the impeachment of a Government witness).
With regard to the FBI otherwise, we have discussed issues arising from agents’ note-taking policies: