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Thread: Carter Page and the fourth amendment

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    radical strawberry lao tzu's Avatar
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    Carter Page and the fourth amendment

    The Dubious Legal Claim Behind #ReleaseTheMemo

    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.
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    tWebber Mountain Man's Avatar
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    The FBI should have made a full disclosure of the facts and let the judge decide. The fact that they didn't because they knew the dossier wasn't worth the paper it was written on is damning.

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    radical strawberry lao tzu's Avatar
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    By my count, Page shows up as the subject of one of the early Steele memos, and is referenced indirectly or parenthetically in three others. The most pertinent memo is 2016/94, dated 19 July 2016. Because the PDF is unsuitable for copy/paste, I've transcribed the topline and summary with some care, using all ten thumbs.

    COMPANY INTELLIGENCE REPORT 2016/94

    RUSSIA: SECRET KREMLIN MEETINGS ATTENDED BY TRUMP DVISOR, CARTER PAGE IN MOSCOW (JULY 2016)

    Summary

    TRUMP advisor Carter PAGE holds secret meetings in Moscow with SECHIN and senior Kremlin Internal Affairs official, DIVYEKIN

    SECHIN raises issues of future bilateral US-Russia energy co-operation and associated lifting of western sanctions against Russia over Ukraine. PAGE non-committal in response

    DIVEYKIN [sic] discusses release of Russian dossier of 'kompromat' on TRUMP's opponent, Hillary CLINTON, but also hints at Kremlin possession of such material on TRUMP

    We know from publicly available information that Page spent three days in Moscow in July 2016. Prior to the Papadopoulos revelations, in the context of the Trump investigation, it was clear that the Page trip was important, but not precisely how important.

    That trip last July was a catalyst for the F.B.I. investigation into connections between Russia and President Trump’s campaign, according to current and former law enforcement and intelligence officials.

    It is unclear exactly what about Mr. Page’s visit drew the F.B.I.’s interest: meetings he had during his three days in Moscow, intercepted communications of Russian officials speaking about him, or something else.

    Comey announced the investigation in April, while he was still the FBI director. The Page warrant was issued in September, after Page had left the campaign.

    To the extent that the Steele dossier played a role in the application, the above is all she wrote, so to speak. Two sources are cited in the details, one close to Sechin, which is a fairly good for the meeting with Sechin, while the other, again transcribed from 2016/94 ...

    Speaking separately, also in July 2016, an official close to Presidential Administration Head, S. IVANOV, confided in a compatriot that a senior colleague in the Internal Political Department of the PA, DIVYEKIN (nfd) also had met secretly with PAGE on his recent visit.

    ... appears to have been a compatriot to an official close to Ivanov.

    I don't know if the above, by itself, would be enough for a warrant, but the suggestion that this intelligence was fabricated in an act of malicious bias, as seems to be the thrust of right wing conspiracists, is without merit.

    As an aside, the Steele memos suggest Page was not the only American political figure with a prepaid Moscow trip. Representatives of perennial candidate Lyndon Larouche and Jill Stein, of the Green Party, are also mentioned.
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    radical strawberry lao tzu's Avatar
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    Quote Originally Posted by Mountain Man View Post
    The FBI should have made a full disclosure of the facts and let the judge decide. The fact that they didn't because they knew the dossier wasn't worth the paper it was written on is damning.
    I understand those making these arguments are speaking from their hearts, but the arguments themselves have no legal standing.
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    tWebber shunyadragon's Avatar
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    Quote Originally Posted by Mountain Man View Post
    The FBI should have made a full disclosure of the facts and let the judge decide. The fact that they didn't because they knew the dossier wasn't worth the paper it was written on is damning.
    There is no evidence that full disclosure was not done. This only the claim of Nunes' selective three or four page memo (yuck! yuck!), and not backed up by citations of the complete document.
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    tWebber Mountain Man's Avatar
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    Quote Originally Posted by lao tzu View Post
    I understand those making these arguments are speaking from their hearts, but the arguments themselves have no legal standing.
    Securing warrants under false pretenses -- which the FBI did -- is a felony. McCabe admitted on the record that they would have never gotten the warrants without the dossier which they knew to be tainted evidence at best.

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    tWebber demi-conservative's Avatar
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    Quote Originally Posted by lao tzu View Post
    Since memo is out to public, you should not be doing post of analysis of Fake News report of anonymous source report of memo, but analysis of memo itself.

    You know better!!! Sad!
    Trump is basically "Bruce Wayne pretending to be a foppish retarded billionaire" tier genius, in case nerds need a simpler metaphor.

  8. Amen Darth Executor amen'd this post.
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    radical strawberry lao tzu's Avatar
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    Quote Originally Posted by Mountain Man View Post
    Securing warrants under false pretenses -- which the FBI did -- is a felony.
    I understand Nunes suggests this, but it's far from proven, and Nunes' history suggests he's not particularly careful with facts in his defenses of the Trump administration. It bears repeating that there remains a still-undisclosed 10 page response, purportedly containing point-by-point refutations.

    McCabe admitted on the record that they would have never gotten the warrants without the dossier which they knew to be tainted evidence at best.
    McCabe can testify on his part of the decision to seek a warrant, but he's not well placed to comment on the deliberations of the FISC, and cannot speak definitively even on the decision to seek the warrant. Notably, while McCabe signed off on the last extension, the initial application and the earlier extensions were signed off for the FBI by then-director Comey, and also required approval from a relevant DOJ official, which has included Boente, Yates, and Rosenstein, sequentially.

    More, Nunes' report on McCabe's testimony is not McCabe's testimony. In the absence of McCabe's testimony, we have to consider dissenting witnesses.

    But the people familiar with the Democratic memo said that Republicans had distorted what Mr. McCabe told the Intelligence Committee about the importance of the information from Mr. Steele. Mr. McCabe presented the material as part of a constellation of compelling evidence that raised serious suspicions about Mr. Page, the two people said. The evidence included contacts Mr. Page had in 2013 with a Russian intelligence operative.

    Mr. Page’s contacts with the Russian operative led to an investigation of Mr. Page that year, including a wiretap on him, another person familiar with the matter said.

    Mr. McCabe told the committee that the decision to seek a warrant under the Foreign Intelligence Surveillance Act, or FISA, was also prompted by Russia’s attempts to target Mr. Papadopoulos, by a trip Mr. Page took to Moscow in July 2016 and by the Russian hacking of Democratic emails that appeared to be aimed at harming the Clinton campaign, the two people familiar with the Democratic memo said.

    If Nunes', as these comments suggest, has materially misrepresented a witness who appeared before the committee, his tenure on the committee has likely found its third rail. Nunes' previous attempt to derail the HPSCI investigation led to his forced recusal. At this point, I don't believe the reputation of the committee itself can be salvaged while Nunes remains in place as its chairman.
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    radical strawberry lao tzu's Avatar
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    Quote Originally Posted by demi-conservative View Post
    Since memo is out to public, you should not be doing post of analysis of Fake News report of anonymous source report of memo, but analysis of memo itself.

    You know better!!! Sad!
    Please use proper English.
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    Some clarifications ...

    Quote Originally Posted by lao tzu View Post
    As it's been addressed, my interest in promoting this article, especially after the release of the memo, was in how well it addressed the underlying legal claim of the memo itself.


    And corrections ...

    Quote Originally Posted by lao tzu View Post
    Comey announced the investigation in April, while he was still the FBI director. The Page warrant was issued in September, after Page had left the campaign.
    The above timeline is reversed, suggesting the Page warrant was issued after Comey announced the Trump investigation. Comey disclosed the investigation in April 2017. The Page warrant was first issued in September 2016.
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