I recently posted about persons who foolishly speak to FBI agents without first retaining counsel, and am unsurprised to discover that FBI agents themselves say some really stupid things. An FBI official’s texts with his mistress about the Trump investigation revealed his improper motives for investigating General Flynn and led to the revelation that he revised a report about the Clinton email scandal. An FBI employee conducting an affair is emphatically unfit to be working on one of the most sensitive “counterintelligence” investigations in history. Intelligence agencies regularly polygraph their employees to ascertain whether substance abuse, financial difficulties, or illicit personal behavior might allow them to be blackmailed or corrupted in the execution of their official duties. Some people say stupid things in texts. Some people conduct clandestine affairs in the workplace. Others engage in partisan witchhunts. Few people can do all three while also serving as a top counterintelligence official and sending more than 10,000 text messages.
Even in the electronic age, texts are a cumbersome method of conducting serious business. (And while high-ranking FBI officials exchange 10,000 texts, the “investigation” drags on.) However, texts, social media posts, and even personal emails are valuable to show bias, alibi, impeachment, tendencies, unknown connections, and even personality traits that might be relevant to an investigation or legal controversy. In the information age, matters that were previously communicated orally are now committed to writing and matters that were previously committed to writing are now preserved in a format that is far easier to review, recover, index, search, and transfer than ever before. I have won (or favorably resolved) many cases due to my relentless search for personal communications supporting my client’s version of events or showing bias or unreliability of adverse witnesses. Proper gathering and utilization of such records requires expertise and understanding of many complex and evolving laws, rules, and regulations. When retaining counsel for a substantial dispute, be sure to inquire as to his experience in obtaining, searching, and using stored electronic communications.