Last week the airwaves were a-twitter with talk of a dramatic Memo prepared by Representative Nunes, which would destroy the Mueller investigation.
Then, when it was finally released on Friday, the pundits appeared to be confused. They seemed confused by their own political views as much as anything.
As always, I’ll take a different approach to analyzing “The Memo” business: The “lawyer approach”.
What is going on? What are the Republicans talking about when they argue that alleged defects in the application for a FISA warrant mean that any evidence obtained as a result is tainted, illegal and improper? And, are they right about that? Why or Why Not?
That, Dear Reader, is the elephant in this whole room; and no one directly involved seems to believe in elephants.
But, the issue is still there: does any of the alleged irregularity described in “The Memo” invalidate the investigation and evidence collected, even assuming the memo is accurate and complete?
All I can tell you is that in the real world, the answer is: uh, NO.
One side in this debate claims that the following problems make any evidence obtained invalid:
1. The failure to disclose that the investigators were biased against the ultimate subject / target of the investigation
2. The failure to properly disclose the original source of the information
Are you kidding me?
Imagine this argument: My hypothetical client is being investigated for killing babies. The cops hate him and want him locked up for life. They prepare a warrant affidavit, neglecting to mention their hatred for my client.
I then go to court, argue that their failure to include the information about the cops hating my client means that not only should any evidence obtained as a result of the warrant be suppressed, but that the entire murder investigation should be terminated.
Can you imagine? I’d be attacked in court by the family members, to be sure. And I’d deserve to be.
Because it’s a ridiculous argument.
Bias does not taint the entire case. There is always bias in my cases. And about the only time I can even bring it up is when I’m cross-examining cops during trial. Under Davis v. Alaska it is unconstitutional not to let me ask witnesses if they are biased when they testify.
Wanna see how that actually works in real life?
“Detective, Are you personally biased against my client who is charged with murdering babies?”
If they say yes, the jury gives them a standing ovation.
Bias does not mean that the investigation vaporizes. The idea of asking to have a current, ongoing, active investigation halted because the investigators do not like my client and say bad things about them has me ROFLMAO.
Here, “The Memo” states that Mr. Steele said that he was indeed biased against Trump (who, btw, was not the target of the warrant). When Steele said that, he had already discovered evidence (which he found credible) that the Trump campaign was potentially compromised by Russian intelligence operatives.
He was biased because he thought the target was guilty. So what? Cops virtually always think the target is guilty, or at least up to no good. Duh. That is why they are seeking a warrant in the first place.
It means nothing.
No more than it would if the target had been a baby killer. The law is the law. It does not change based on who the target is, or whether you like or dislike the target or their politics.
In the real world arguments like this are, at best, difficult to make. And virtually impossible to win in a real life court of law.
Still, having seen how it works in the real world (i.e. it doesn’t), let’s look at the legal theories they are relying upon here, however misguided they may be. Franks and Brady. Here’s your case law lesson.
Franks says that a trial court is obligated to conduct a Franks hearing to suppress evidence seized via a warrant if the defendant makes a preliminary showing that the cops lied about the evidence they used to justify of the issuance of a warrant.
Even getting the court to order a Franks hearing in the first place is an uphill battle.
Winning one is a pipe dream in most cases. And anyone arguing that the bias of investigators negates the validity of an entire active investigation has indeed been smoking something exotic in their pipe.
In Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”
However, that analysis is normally applied only to the obligation of the prosecution to disclose potentially favorable evidence to the defense prior to trial.
Not providing Brady material to defendants during discovery is not the same thing as not providing exculpatory evidence to the magistrate when asking for a warrant.
Instead, the suppression argument would be that the omitted information was material and its omission prejudicial. And this can depend on whether the warrant application would stand on its own without the omission (or misrepresentation for that matter).
So you would have to read the entire application to decide whether there was sufficient additional evidence to support the warrant.
Be careful what you ask for, is all I can say.
As to whether or not the warrant is invalidated due to the omission of information that the original author of the “Dossier” was paid to compile, the analysis is fairly simple (it originated with work paid for by Republican opposition researchers, by the way).
Is being paid a reason to invalidate what you say?
If it is, then many warrants are invalid. That is because most informants are paid, either with treasure or leniency, or both. The fact that the source of information is sketchy is a fact of life when obtaining warrants.
Let’s put it this way. I have had clients whose homes were searched using warrants that were based entirely on what burglars told the cops they saw when they broke into my client’s house.
The judges had no problem issuing warrants that originated with information obtained from burglars describing their burglaries.
I am pretty sure if those warrants are valid, warrants based on information coming from professional political workers is valid. Why would it not be?
These politicians just don’t seem to know how the real legal world operates. Either that, or they are intentionally misrepresenting the process to the public. Take your pick.
There is one last common legal concept that applies here. It is also a concept that comes up more frequently during trials, not during the middle of active investigations. We call it “opening the door”. It is a rookie mistake.
In trial, it happens when you think you have a dramatic favorable point to make; it can backfire if you did not do your homework. A rookie lawyer might ask a cop if he was making up the fact that he thought a suspect was dangerous just so he could justify using excessive force to arrest him.
Then the cop answers that he had his gun out because he had been to the suspect’s house ten times before responding to 911 calls when the suspect was busy assaulting people. He walked right through the “open door” created by the lame defense lawyer.
Apparently Nunes never read the FISA application. “Opening the door” in this situation would mean that the entire warrant application should be made available for public scrutiny, so that it can be reviewed in context, just like that dangerous suspect’s past criminal history.
Does Nunes have any clue what all is actually in FISA applications? No, Wait. He doesn’t. He doesn’t bother to read them. He didn’t do his homework, just like a bad lawyer. But generally speaking, they are chock-full of all sorts of unfavorable evidence about the target, from more than one source.
Evidence Nunes would prefer not to make public.
Which brings me to my last point. I’m not a huge fan of the Feds. I have dealt with them way too many times to love them.
In fact, instead, I kind of enjoy giving them grief. You really haven’t lived as a criminal defense attorney until you have had a honcho from Homeland Security up on the witness stand, making them look stupid and corrupt at the same time.
Normally, people like Nunes hate me for doing that, which is why I find this whole thing so bizarre. I may not love all FBI agents, but I respect the Bureau as a whole. A lot. After all, I grew up watching Efrem Zimbalist Jr. every Sunday night, saving America while looking sharp in a suit.
How on earth elected members of Congress, and even the President himself, can attack their own cops defies belief. There must be a very good reason for them to do so. But, “the Memo” doesn’t demonstrate that. It only demonstrates that they have no idea how this stuff really works in real life.