Prosecutors worried that bill would derail undercover inquiries


Remember the 1997 movie, “Donnie Brasco,” based on the true-life tale of an undercover FBI agent who infiltrated the mob?

Now try to imagine the film if Donnie (played by Johnny Depp) had to give hitman Lefty Ruggiero (Al Pacino) written notice of his right to record their every encounter as the investigation proceeded. Chances are pretty good that this climactic bust (parental discretion advised) wouldn’t have happened:

That, in essence, is the alarm being sounded by prosecutors over a House-passed bill that would require federal officials to advise people of their right to record phone conversations and in-person meetings under certain conditions–such as when they are the target of a criminal investigation. For the record, here’s the actual text:

“A notice of an individual’s right to record conversations with [federal]employees shall be included in any written material provided by an Executive agency to the individual concerning an audit, investigation, inspection, or enforcement action that could result in the imposition of a fine, forfeiture of property, civil monetary penalty, or criminal penalty against, or the collection of an unpaid tax, fine, or penalty from, such individual or a business owned or operated by such individual.”

In its original form, the bill by Rep. Lynn Jenkins, R-Kan., contained an exemption for federal criminal probes. By the time it passed the House last week as part of the “Stop Government Abuse Act,” the exemption was gone.

Should the bill become law, the advance notice requirement “would virtually undermine all undercover criminal investigations” by “announcing the existence of the investigation and blowing the cover,” Robert Guthrie, president of the National Association of Assistant United States Attorneys (NAAUSA), warned last week in a letter to House members before the bill passed.

In an emailed response to FedLine this week, Jenkins said the amended version of her bill “seeks to strike that delicate balance between government accountability and law enforcement. While the right to record would apply to undercover investigations, nothing in the bill would require law enforcement officials to notify the specific individuals of that opportunity.”

NAAUSA’s concerns remain, Bruce Moyer, the group’s counsel, said in a phone interview yesterday.

The sparring over the measure is probably academic. As passed by the House, the Stop Government Abuse Act bundled Jenkins’ bill with two others that would limit employee bonuses during a sequester and make it easier to fire Senior Executive Service members accused of serious wrongdoing. The combined legislation is given little chance of passing the Senate.



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  1. I really don’t see how the Donnie Brasco hypothetical would follow from the actual text of the bill. The bill (as quoted) does not require that everyone being targeted for investigation receive notice of the right to record conversations. There is no freestanding right to receive a notice in the quoted text. Rather, the bill says that IF a federal agency “provide[s]” “any written material … to the [targeted] individual concerning an audit, investigation, inspection, or enforcement action,” THEN a notice “shall be included in” that material. But if the feds never “provided” “any written material” in the first place, then there is no document to put the you-can-record-our-conversations notice “in.” So as long as the feds haven’t been handing out “written material” about their undercover investigations to the targets of those investigations, this provision doesn’t even appear to apply.

    It hardly seems unreasonable to require, when a federal agency is already providing written material about an investigation to someone, that the written material include a notice of the individual’s rights. In fact, such statements are commonplace in law-enforcement materials provided to suspects “concerning an audit, investigation, inspection, or enforcement action.” The complaints in the article sound more like straw-man arguments from those who don’t want suspects to receive notice of this particular “right” under any circumstances.

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