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Comment on Orin Kerr on the FISA Memo’s Fraudulence

February 1st, 2018 No 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:

Don’t Trust Big Name Law Profs to Know What They’re Talking About

April 8th, 2009 No comments

A commentor at VC gives an example of how you can’t trust a big-name law professors to have his facts straight about the key point of his argument:

“According to Tushnet, there’s nothing for the AG to do until a bill lands on the President’s desk.” Absolutely not correct. (1) Obama claimed during the campaign that he would try to minimize conflicts between the President and Congress by having “his” OLC advise him and Congress of constitutional objections at early stages of bill drafting. (2) Regardless of point #1, OLC has served this function since its inception, and the reason it issued this opinion is that it was serving this function as a matter of course — this opinion was in no way unusual; in fact, OLC reviews all major items of legislation in their early stages; it has a position purely for this purpose, known as the “bill comment” deputy or “legislative” deputy (Deputy Assistant Attorney General, or DAAG). (3) Regardless of points #1 and #2, having OLC offer its views before bills become final is good policy and good government, as only the Justice Department (as compared to individual Senators and Representatives) has the budget and staff capability to field a standing body of con law experts, and having those experts advise Congress provides both a valuable “second look” and a way to head off legislative-executive conflicts before they reach an advanced stage where positions can harden artificially. (Con law isn’t the only area of expertise for which OLC serves this function for Congress but the others aren’t implicated in this question, so I won’t digress.)

Tushnet, therefore, is wrong as a matter of Obama’s campaign promises, as a matter of historical practice, and as a matter of good government practice. Three strikes — he’s out!

Categories: law, law professors, univerities Tags:

International Law

April 6th, 2009 No comments

Eric Posner is good at VC on the liberal, Kohish view of international law as mere hypocrisy. He explains the academic argument by Koh: international public opinion has strong actual effect, and ends up forcing the US government to bend to its will, and so is actual law.

Categories: international law, law, law professors Tags:

OLC’s Dawn Johnsen

February 27th, 2009 No comments

National Review has an article on IU Prof. Dawn Johnsen’s confirmation hearings (OLC)with links to a Slate article on her.

Categories: law, law professors Tags: