What to Do If the FBI Wants to Interview You.

The request for an interview is not a formality. It is a step in an investigation that has been proceeding without your knowledge.

When FBI agents request an interview, whether by appearing at your door, by contacting your employer, by leaving a card with a note to call, or by reaching you through an intermediary, the investigation of which you are a part has advanced to the stage where your account of events has become useful to the government. That account may be sought because you are a witness with relevant information, because you are a subject whose cooperation could be valuable, or because you are a target and the agents want to hear what you say before charges are filed. The request does not specify which of those is true.

Do Not Agree to the Interview Before Retaining Counsel

The most consequential decision in response to an interview request is whether to agree to one, and that decision should not be made before consulting an attorney who understands federal investigation practice. An agreement made at the door, over the phone, or through an intermediary is an agreement made without the information necessary to assess its implications.

Agents who request interviews typically prefer that the subject agree promptly, before counsel becomes involved and before the subject has had the opportunity to assess their exposure. That preference is itself informative. The interview the government wants to conduct quickly is often the interview the subject should approach most carefully.

Assessing Your Status Before the Interview

Counsel retained before an interview can make inquiries of the assigned prosecutors that clarify your status in the investigation. Those inquiries may establish whether you are being approached as a witness, a subject, or a target. They may reveal the general subject matter of the inquiry. They may establish whether the government would entertain a proffer agreement as the vehicle for any cooperation, rather than an unprotected voluntary interview.

The status assessment shapes everything about how the interview, if it occurs at all, should be approached. A genuine witness with no personal exposure has different considerations than a subject who does not yet understand the government's theory of their conduct. The assessment requires information that cannot be obtained without counsel's involvement.

I have observed eleven voluntary FBI interviews in which the subject believed, at the outset, that they were a witness. Four of them produced admissions that materially changed the government's view of the subject's role. Two of those four resulted in indictments within six months.

If You Decide to Cooperate

The decision to cooperate with an FBI investigation, if it is made after a full assessment of the relevant facts and risks, should be structured to provide maximum protection to the cooperating individual. A proffer agreement, negotiated between counsel and the prosecuting attorney's office, provides limited protection against the direct use of the subject's statements in any subsequent prosecution. The agreement defines the scope of the interview, the topics to be addressed, and the conditions under which the government may use what it learns.

No proffer agreement eliminates all risk. The government may use leads derived from the proffer to develop independent evidence. The subject's statements may be used if they are inconsistent with testimony at trial. The protection is real and bounded, and understanding its limits is the precondition for deciding whether to accept it.

The Interview Itself

If an interview proceeds, it should occur in the presence of counsel. It should be limited to the topics agreed upon in advance. Your attorney may instruct you not to answer questions that exceed the agreed scope. Answers should be accurate, measured, and confined to what you actually know rather than what you believe or suspect. Speculation volunteered to fill silence is not cooperation. It is additional evidence.

After the interview, debrief with counsel immediately. The questions asked and the documents shown are intelligence about the investigation's current direction. That intelligence informs what happens next.