At a time when “truth” has come to feel so subjective, investigators must find ways to keep our minds open—and our political and professional selves separate.
In late November 2016, just two weeks after the presidential election, a former client contacted my office with an unusual request. He wanted us to hand-deliver envelopes to three potential White House advisors/cabinet appointees: Newt Gingrich, James Mattis, and Michael Flynn. The content of the envelopes was described to us as “…thoughts on peaceful relations with the Russians.”
On its face, the task seemed perfectly legal and even mundane. The client was a wealth management firm specializing in Chinese investments. Still, it made me uncomfortable because of Donald Trump’s praise of Russian president Vladimir Putin, who is a straight-up authoritarian thug. When I learned my office had agreed to perform the delivery, I immediately pulled the plug.
“Please politely decline this case,” I wrote in an email to my office manager. “My company won’t be working for the alt-right or helping extend olive branches to fascists.”
When the packages arrived at our office a day later, we returned them to our former client without reading their content. I didn’t give it another thought, until a year later when The New York Times reported that the Kremlin made similar overtures to Trump’s campaign through an NRA operative and an advocate for Christian causes. Of course, Michael Flynn has since pleaded guilty to lying to the FBI about his contacts with the Russians, and the White House remains under a cloud of suspicion.
Perhaps I narrowly avoided becoming a pawn for a foreign intelligence service, or perhaps there was an innocent explanation. I leave it to the FBI to figure that out.
Personal Codes of Ethics in a Politically-Charged Era
I tell this story now because it demonstrates how it can be extremely challenging to navigate the ethical pitfalls of private investigations, even for humdrum cases. We alone are responsible for vetting our clients, upholding the law, and making sure our investigations are done only for ethical purposes. However, when hired through an intermediary, we may have little to no contact with the end-user of our work product. We certainly have no control over what happens to the information we gather once it leaves our hands.
And the point at which a legitimate case becomes an ethical hot potato may vary depending on the investigator. Even a perfectly legal job may not meet the “first, do no harm” ethics test, depending on your personal philosophy—or your ideological preferences.
Several years ago, in my book Introduction to Conducting Private Investigations, I wrote, “There is a point at which an investigator must ask if she is comfortable working on behalf of a private interest that may be detrimental to society.” It stands to reason that this threshold is subject to societal changes.
Our country has grown staunchly divided during the past year on many political and social issues. I was curious about how these divisions have affected our profession. So I recently shared excerpts from my chapter on “The Ethics of Being a Private Investigator” with several colleagues, and I asked them about cases they had turned away because of ethical concerns.
My takeaway from their responses was that good investigators know their own prejudices and limitations and wrestle with them constantly as they make ethical choices in their professional lives.
Their advice harkened back to some of the themes I discussed in my textbook—techniques I learned, to help me separate my subjective (and partisan) private self from the dispassionate professional persona I need to maintain to be an effective investigator. In the book, I outlined three strategies for maintaining professional distance in my cases: Working through an attorney whenever possible, being ethically aware, and focusing only on objective facts.
Re-examining these maxims has never been more relevant than right now, when our political discourse has become so bitterly polemical.
1. Work through an attorney.
There are many good reasons to work through an attorney whenever possible. Every investigator knows that only reports deemed “attorney work product” are safe from the opposition. Another reason is that good attorneys act as a buffer between you and their clients, whose personal lives are inextricably tied up with whatever you’re investigating. That distance can work both ways; there’s a danger that knowing little about your client’s situation may cause you to unwittingly aid a nefarious agenda. But if you trust the integrity of your attorney-collaborators, working with them can help you maintain professional distance and objectivity.
Jennifer Karas Brown of J. Brown Legal Investigations told me about a case she worked a decade ago, in which a conservative state politician was accused of child sexual assault. In part through her work, the allegations were deemed to be unfounded and the charges dropped. Brown is an outspoken progressive. “I would never vote for him,” she wrote, “but I am glad I was able to keep him from being charged with such an awful crime.”
As an investigator, you must have a series of moral imperatives in mind—boundaries you will never cross—before you accept any case.
Not all attorneys make good buffers. Another investigator—who asked not to be named in this article, as she works for a public defender’s office—told me how overzealous attorneys, particularly of the progressive variety, can sometimes steer investigations into dangerous territory. “It is almost as if in their zeal to correct the injustices of society they overshoot and end up having a hard time seeing the reality of their client’s case and engaging critically with that reality.”
“It goes back to knowing your customer and being able to quickly assess who a slick attorney represents,” Emmanuelle Welch of French Connection Research explained. “Once, an attorney working for a very wealthy country known for its oppression of women told me that, on a regular basis, diplomats from this country see their wives disappear soon after landing in the U.S. These women would take off, and he needed help to locate them. I told him that no amount of money would have me help bring a woman back into oppression. Just like I wouldn’t accept any job skip-tracing a defector from a communist country or dictatorship.”
In other words, working for an attorney isn’t always enough, because attorneys are humans too—and many humans are scumbags. As an investigator, you must have a series of moral imperatives in mind—boundaries you will never cross—before you accept any case.
Of course, this is where subjectivity comes into play.
2. Own your prejudice.
“It is [prudent] to know one’s prejudices and to adequately adjust for them before undertaking investigations.” I wrote these words in the first edition of Introduction to Conducting Private Investigations, which was published in 2009.
Herewith, in the spirit of full disclosure, I have a confession to make. Forgive me, Father, for I have sinned. It has been some time since my last confession. Just in the past few months, I have committed, along with many venial misdeeds, the mortal investigator-sin of outspokenness. I wrote a novel, called Freedom City, which is so fervently left-wing that one memorable scene features rebels launching the heads of Confederate statues into the U.S. Capitol with a medieval trebuchet.
In other words, I harbor a deep-rooted political prejudice. I own this. And if you want to avoid bias in your investigations, you will need to own your prejudices.
Writing a book as controversial as Freedom City would have never occurred to me in 2009, or even in 2016. In my trainings, I have long used the analogy of the disciplined “investigator monk” who always maintains objectivity, keeps his or her opinions private, and remains stalwartly focused on the facts. But after trying to remain outwardly “professional” and “neutral” in the year since the last presidential election, the threshold inside me shifted. My firm worked a few opposition research cases for “conservative” causes in 2017, but when I decided my own political predilections might hinder my professional objectivity, I issued an edict at my firm. We now turn those cases away.
Although none of the colleagues I spoke to have experienced such an abrupt crisis of conscience since the election, all were able to clearly articulate the point at which they would refuse a case.
Jennifer Karas Brown explained how she avoids these dilemmas by specializing in criminal defense. “I would never in a million years take money from the NRA to help them increase sales or loosen gun laws. However, if Wayne LaPierre were accused of sex assault, I would work on that case. I don’t have to like my clients personally in order to preserve their constitutional rights.”
Emmanuelle Welch put it this way: “[From] the moment I started working as a private investigator, I knew that I wouldn’t work for specific cults or political factions which I find detrimental to society or humanity.” A sophisticated corporate researcher, Emmanuelle declines cases that violate her morals, and this allows her to sleep well at night.
Jennifer and Emmanuelle, as well as the other investigators I interviewed, demonstrated a keen awareness of their limitations. I would argue that this astute ethical awareness is among their strongest assets.
3. Remain objective.
“[It] is essential that investigators avoid becoming pawns to the causes of their clients,” I wrote in Introduction to Conducting Private Investigations. “This is accomplished by maintaining one’s professional identity and avoiding personal or political relationships with our clientele.”
If you’re working for an attorney and you’re aware of your prejudices—but you’re still faced with an ethical quandary—your investigative independence is the only thing that will save you. Doing the right thing requires that you first determine what “right” means to you—and that you look at all investigations as a means to a specific, ethical goal, rather than merely to earn an income or to make a client happy.
The investigator who wished to remain anonymous wrote, “I do sometimes butt heads with attorneys because of my commitment to finding and reporting objective facts. I have also had a handful of occasions were I felt requests were out of line or going so far afield from investigating the client’s case that I ultimately had to involve my supervisor or office director.”
Emmanuelle explained it like this: “Accepting or turning down an [opposition] research job depends a lot on the nature of the mission. I’ve worked on cases for the representatives of various politicians. One was for a high-profile U.S. politician whom I can’t stand, but I was on a clear fact-finding mission to answer a very legitimate question about their opponent. Very different from war-room dirt-digging with no boundaries.”
It follows then that the overarching goal of the investigation and your client’s goal may not always align. When this happens, you must have the courage to push back or refuse to work on the case. Otherwise, you risk becoming a tool to a cause that might hurt people.
Although the rifts in our society may have grown wider in the past year, the fundamentals of investigative ethics still hold true. Investigators aren’t robots. We have opinions and sometimes make mistakes, just like everyone else. But the nature of our work means that our mistakes can have dire consequences for our clients and the public. To avoid becoming a shill, investigators should use a lawyer as an intermediary, be honest about their prejudices, and not let greed lead them down a rabbit hole of open-ended partisan dirt digging.
These are the enduring qualities that make us investigators: We pride ourselves on our ability to identify and report facts objectively, even at a time when the “truth” has been muddled by unbridled partisanship.
About the Author:
Philip Becnel is the managing partner of Dinolt Becnel & Wells Investigative Group and the author of Freedom City, a novel about a motley group of rebels (including a P.I. and an attorney) who wage a guerilla war on post-Trump America.