Politics, White-Collar Crime

Monica Lewinsky and What's Wrong With How the FBI Talks to People

Report finds that Monica Lewinsky was mistreated by the federal government -- and not just by the head of the Executive Branch.

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The Washington Post reported this week that Monica Lewinsky was mistreated by the federal government — and not just by the head of the Executive Branch.

According to the article, a report just became public detailing misconduct by federal law enforcement in the way they approached Lewinsky at the start of her part of the investigation that lead to Clinton’s impeachment.

The report finds that the government’s approach was wrong. Lewinsky shouldn’t have been handled the way the FBI and prosecutor dealt with her.

How did the report reach that conclusion?

The Department of Justice, in 2000, issued a report called “Report of the Special Counsel Concerning Allegations of Professional Misconduct By the Office of Independent Counsel in Connection with the Encounter.” It details what happened when the FBI approached Monica Lewinsky at a food court in Virginia.

Lewinksy thought she was going to meet Linda Tripp for lunch. Instead, she was met by the FBI.

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Lewinsky told the FBI to “Go f**k themselves.”

She had a lawyer for a deposition in the Clinton v. Jones lawsuit. She told the FBI to go talk to her lawyer. They told her that if she didn’t cooperate with them and wear a wire to go after the President they’d put her in prison for 27 years. They told her she’d get more information from them if she didn’t bring in a lawyer. So she agreed to go to a hotel room and talk.

She was there for hours. Lewinsky spent the time “crying, sobbing, regaining her composure, [and] screaming.”

First, folks who remember about half of their first year crim law course may think this was a Miranda violation.

Not quite.

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Lewinsky wasn’t in custody; she was in a food court at a mall and she voluntarily went to the room with the agents.

Maybe you could argue that at some point this became tantamount to being in custody, but that could be tricky. My bet is that, in any event, the government didn’t think that they’d use any statement she’d make during that meeting, so even if it was a Miranda violation the government wasn’t sweating it.

Instead, the problem is Rule 4.2 of the Rules of Professional Conduct. Rule 4.2 says (ABA Model Rules version, check your local jurisdiction for your favorite):

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

In Lewinsky’s case, the government knew that she was represented by lawyer. That lawyer was representing her in connection with her deposition in a civil case, not in a criminal investigation. So the prosecutor running the show with the FBI took the position that she wasn’t represented in the same matter by her lawyer for the deposition.

Never mind that Lewinsky kept asking to talk to him and that the subject matter they wanted to talk to her about was, presumably, really really similar to what was interesting in the Paula Jones case.

The DOJ Report says that the call about whether Rule 4.2 prohibited this contact was close enough that the prosecutor should have acted differently.

That seems like a fair response.

What’s telling is that it doesn’t really meet Lewinsky’s biggest complaint about this interaction. Here’s what Lewinsky has said:

Immediately following [the FBI’s approach], in a nearby hotel room, I was threatened with up to 27 years in jail for denying the affair in an affidavit and other alleged crimes. Twenty-seven years. When you’re only 24 yourself, that’s a long time. Chillingly, told that my mother, too, might face prosecution if I didn’t cooperate and wear a wire. And, in case you didn’t know, I did not wear the wire.

There are virtually no checks on the federal government’s use of threats against normal people to meet their ends. It’s a tremendous amount of power that the federal government has. It’s incredibly scary to have the FBI tell you that they will lock you in prison if you don’t play ball. Yet the law is cavalier about the government using this fear to get people to do what it wants.

It reminds me of a plea hearing I was at years ago, where my client was pleading guilty so that the government wouldn’t file paperwork to enhance the mandatory minimum for his sentence.

The judge asked him, as they do in any plea colloquy in federal court, whether anyone had threatened him to get him to plead guilty.

My client said that he had been threatened if he didn’t sign the plea.

The judge, not expecting this answer, asked him who. The judge was worried — threatening someone to get them to plead guilty is really not allowed.

My client pointed at the prosecutor across the courtroom and said, accurately, that the prosecutor had told his lawyer that he’d have a mandatory minimum of 20 years if he didn’t plead.

The judge laughed and said that my client had misunderstood him. What the judge meant was whether anyone had threatened my client with violence.

The client got on board, seeing where this was going, and said no one had threatened him that way.

But, really, how is a threat to increase a person’s sentence not a threat of violence. It’s a threat to put him in a cell, and if he leaves, men will come with guns and drag him back to the cell. What’s not violent about that?

Most of us accept that we need a little bit of violence, or the threat of it, to keep society running. If folks can break down my door without fearing the police, I’m living in a dangerous world.

But when federal agents wield that threat, surely we should care about how they use it.

Shouldn’t we?

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