The Dubious Legal Claim Behind #ReleaseTheMemo
Information presented in a search warrant needs to be true. Not all of it, but enough to justify the application. Bias of the informants is relevant only if it leads to false information.
While hatred of a former spouse too often leads to false claims of child abuse, it would be perverse to require that hatred of a spouse stemming from abuse of the complainant's children should void a warrant. Steele is reliably reported to have been desperate to see Trump prevented from election, but, at the same time, it's reliably reported he initially approached the FBI in the belief that a crime was in progress.
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.
Information presented in a search warrant needs to be true. Not all of it, but enough to justify the application. Bias of the informants is relevant only if it leads to false information.
Here's the context. It turns out that there is lots of litigation on whether warrant applications need to discuss the bias of informants. Franks v. Delaware allows a criminal defendant to challenge a search warrant by arguing that the statement of probable cause that supported the warrants was fatally flawed. Maybe the officer who swore out the affidavit was lying about the basis for probable cause. Or maybe he recklessly included facts that he should have known were false. Or maybe–as is particularly relevant here–he intentionally or recklessly failed to include facts that the judge needed to know in order to pass on whether there was probable cause. Under Franks, a court will void a search warrant if the defendant can establish that the officer who swore out the warrant "knowingly and intentionally, or with reckless disregard for the truth" either included information that was false or excluded information that was true when that information was critical to the probable cause determination.
While hatred of a former spouse too often leads to false claims of child abuse, it would be perverse to require that hatred of a spouse stemming from abuse of the complainant's children should void a warrant. Steele is reliably reported to have been desperate to see Trump prevented from election, but, at the same time, it's reliably reported he initially approached the FBI in the belief that a crime was in progress.
Comment