Home > crime, judges, Justice Dept., law, law professors > Comment on Orin Kerr on the FISA Memo’s Fraudulence

Comment on Orin Kerr on the FISA Memo’s Fraudulence

February 1st, 2018 Leave a comment Go to comments

From Volokh Conspiracy (and Lawfare), Professor Kerr writes:

This is a scandal, the argument runs, because it means the application was fraudulent. Because Steele was funded by Democrats, his reports were just unreliable opposition research designed to make Trump and his associates look bad. And if the FISA application was based on Steele’s unreliable research, and DOJ never told that to the FISA Court, then DOJ misled the court and the court should not have issued the warrant.

As a Fourth Amendment nerd, it seems to me that the premise of #ReleaseTheMemo is pretty dubious. The apparent idea is that the failure to adequately document the funding behind Steele’s work is a huge deal and a fraud on the court. But as a matter of law, that seems pretty unlikely to me. When federal judges have faced similar claims in litigation, they have mostly rejected them out of hand. And when courts have been receptive to such claims, it has been because of specific facts that are likely outside the scope of the memo that will be released.

 

Prof. Kerr misses the elephant in the room, in two senses.

In the first, sense, the elephant is the omnipresent in 4th Amendment Law: the law protects only criminals, not innocent people, from illegal searches.  It does this by limiting relief to the police not being able to use what they find in court, which is unnecessary if they never intend to indict you.

In the second, more specific,  sense  the elephant is that the purpose of the warrant wasn’t to investigate a crime, it was to be able to spy on the Attorney-General’s political enemies.

This is more than a little relevant. In every case cited in the post, the police had no motive to use informants they thought were totally unreliable. Why bother to do the search if you think it’s not going to find anything? That provides a powerful reason for courts to presume (rebuttably) good faith on the part of the police, and give weight to their local knowledge and expertise. In the Steele dossier case, the FBI had a motive to get the wiretap even if it knew 100% the informant was unreliable, because their Democratic bosses could use the wiretap anyway (and quite likely the FBI civil service bosses were anti-Trump too, as we now know).

Categories: crime, judges, Justice Dept., law, law professors Tags:
  1. No comments yet.
  1. No trackbacks yet.