[See UPDATE below.]

To most people (and I include myself) the news that the FBI neither taped nor even transcribed its interview with Hillary Clinton is quite shocking. Nor was she under oath, although that’s not as important since it’s already a crime to lie to the FBI.

But if it’s a crime to lie to the FBI, how would that get proven? Especially when you learn that the FBI almost never tapes or even transcribes such interviews except in a few extraordinary circumstances. I maintain that their interview with the presumptive nominee of the Democratic Party about possible crimes she committed ought to have qualified as an extraordinary circumstance (let’s hope it’s not a trend). But apparently the FBI disagreed.

Here’s the way the FBI usually operates (from an article written five years ago):

…FBI practice limits the taping of interviews or confessions. The FBI’s insistence on using analog technology in a digital age has long stirred controversy in courtrooms across the country…

FBI procedure calls for agents to take notes during interviews and use them as the basis for a typewritten summary report, called a form 302. These 302s become exhibits at trial. Along with an agent’s own testimony, they serve as the primary record of an interviewee’s statement.

Because the substance of the reports is so important — and because the reports are inherently subjective — defense lawyers often seek to pick them apart. putting the agent on the defensive. This is particularly the case when defendants are charged with obstruction or lying to FBI agents…

The FBI’s policy allows for statements to be recorded on a limited, highly selective basis; such recordings must have prior approval from bureau chiefs. Former agents say this is extremely rare…

Those in favor of the current FBI approach to audiotapes allege that any blanket, one-size-fits-all policy would be a logistical nightmare for the already-taxed agency. Furthermore, recordings could reveal FBI interview tactics or strategies.

I don’t really have to explain why this policy is so problematic in the Clinton case. It relies on trust of the FBI agents involved, including trust of the accuracy and completeness of their note-taking, as well as their freedom from bias. There’s no reason at this point to trust those things, I’m sorry to say. It also seems problematic in general, not just when interviewing someone a powerful as Clinton, although the stakes are higher with Clinton.

However, in the quick Googling I just did since I learned about all of this, I can’t find much more about current policy on the subject. If anyone can add to what I’ve written, feel free, and please give links.

UPDATE:

I found a more recent article (May 2014) that mentioned a new directive for recording FBI interviews with suspects:

Under a new policy announced Thursday by Atty. Gen. Eric H. Holder Jr., federal agents investigating drug and gun crimes, as well as the U.S. Marshals Service and the FBI, will videotape or audiotape suspects starting July 11. The interviews will be recorded between the arrest and first appearance in federal court.

For years, FBI agents have been criticized by defense lawyers in criminal trials for testifying about interviews based on recollections gleaned from scribbled notes.

The new directive was apparently triggered by the Tsarnaev case, where the suspect:

…was quizzed for hours by agents after his capture last year. Partly because of that process, Tsarnaev’s lawyers have asked a federal judge to throw out everything he said before the case goes to trial in November.

Eric Holder added the following at the time the new directive was announced:

“Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody,” he said. “It will allow us to document that detained individuals are afforded their constitutionally protected rights.”

Equally important, he said, the new policy will be a “backstop” to ensure that federal agents have “clear and indisputable records of important statements and confessions made by individuals who have been detained.”

The reason I italicized the word “suspects” is that it is a limiting factor, and therefore I am assuming that by the time Hillary Clinton was being interviewed by the FBI she was no longer a “suspect” (if indeed she ever had been), and she certainly was not under arrest or “held in federal custody.” However, when the directive was first issued, this additional suggestion was made:

“This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,” such as in the questioning of witnesses.

So it seems they certainly might have videotaped or otherwise recorded her, but chose not to do so. There is also the possibility that Clinton had them agree to not record or otherwise transcribe her interview as a condition for her speaking to them.

[ADDENDUM: See also this.]