Criminal Justice

The Fruit of the Poisonous Tree

The (non-existent) "taint" in the evidence Mueller's team has been gathering.

|The Volokh Conspiracy |

Some of you may have seen Lou Dobbs' interview with Judicial Watch's Director of Investigations Chris Farrell on Fox News last week, regarding the colorfully-named legal doctrine of "the fruit of the poisonous tree," and application of the doctrine to the evidence gathered by the Mueller investigation. Farrell so egregiously misstates the doctrine that it's worth pointing out the error, in case any of you actually believed what you heard.

Here's how the conversation proceeded (beginning at around 2:55 on the video):

FARRELL: "The situation with Mueller is that every single thing that has come up or derived from all this Russia nonsense is tainted. It's fruit of the poisonous tree … wherein any evidence obtained unlawfully or through any sort of illegal act on behalf of law enforcement or prosecutors can't be used, and anything derived from that can't be used as evidence."

DOBBS: So is there anything that Mueller has done that wouldn't be contaminated or tainted?

FARRELL: "No. Because what you have is Mueller even acknowledging that he had a huge problem with Strozck being on his staff because Strozck, he's got his fingers in everything … So the fact that Mueller realized that Strozck was a problem and canned him is an admission that he knows that anything that comes out of that—actually all of those investigations—is fruit of the poisonous tree … You can't take bad evidence and pretend that you got it some other way, and anything that derives from that is equally inadmissable. So he's got garbage….

DOBBS: … The garbage that he's collected .. is also known to Rod Rosenstein and Jeff Sessions. Why don't they take steps now to end it, because they know that it cannot—it cannot—in any sense of equity proceed from here, because it will lead to nothing.

FARRELL: And Mueller knows the ethical obligation that he has … Since he knows that he's under the gun here, I think he's reluctant to admit that the whole thing is a sham and that nothing really can be used because it's been obtained unlawfully, and so he's trying to go about some way to either rehabilitate the evidence or to find some other lesser charges to use …

DOBBS: … Talk about evidence and rehabilitating it? There is no evidence …

FARRELL: You are correct.

There is a great deal in this that is malignant nonsense, starting at the very beginning, with Farrell's statement of the doctrine: that "evidence obtained unlawfully … can't be used, and anything derived from that can't be used" in a criminal proceeding.

Not quite. To see what the doctrine actually means, here are a few of the classic statements of the doctrine as articulated by the Supreme Court:

The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure. This prohibition applies as well to the fruits of the illegally seized evidence. United States v. Calandra, 414 U.S. 338 (1974).

The essence of the constitutional provision prohibiting unreasonable searches and seizures is not merely that evidence so acquired shall not be used before a court but that it shall not be used at all; while facts thus obtained may be proved like any others if knowledge of them is gained from an independent source, nevertheless the knowledge gained by the government's own wrongs cannot be used by it in a criminal prosecution. Wong Sun v. United States, 371 U.S. 471 (1963).

Under this Court's holdings, the exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or "fruit of the poisonous tree." It extends as well to the indirect as the direct products of unconstitutional conduct. Segura v. United States, 468 U.S. 796(1984). [emphases added throughout]

Notice, please: evidence that was obtained in violation of specific constitutional guarantees—the 4th Amendment's protection against unreasonable searches and seizures, and (as established in other cases) the 5th Amendment's protection against self-incrimination, and the 6th Amendment's right to counsel—is inadmissable, as is evidence derived from that unconstitutionally-obtained evidence.

It is thus simply incorrect—incorrect as in "I'd flunk a 1st year Criminal Procedure student for suggesting it on an exam" incorrect—to suggest that all evidence "obtained unlawfully," and all evidence derived from such unlawfully obtained evidence, isn't admissable in criminal proceedings. Unlawfully obtained evidence can be and is used in criminal proceedings all the time.

Thus, suppose I break into the White House late one evening, make my way to the Oval Office, jimmy open Mr. Trump's desk, and find the smoking gun—the memo ordering the transfer of $10 million to the KGB for "disinformation services rendered during the campaign." I send Mr. Mueller the memo. Notwithstanding the fact that the memo was, obviously, "obtained unlawfully," Mueller is free to use it in any criminal proceeding against Trump or his associates, because its acquisition was not in violation of anyone's 4th, 5th, or 6th Amendment rights. [He'll have to authenticate it, of course, as he would with any piece of evidence—persuade himself, and a jury, that it is what it purports to be; but that doesn't bear on its admissibility].

Or take the famous Dossier. Even if the information in that document was obtained "unlawfully"—in violation, say, of the law regarding the use of campaign funds, or against the involvement of foreign nationals in US election campaigns—every bit of it is admissible, and there are no restrictions on Mueller's use of it to gather other evidence, for the same reason: admitting it into evidence will not compromise anyone's constitutional rights.

To state, as Farrell does, that "every single thing that has come up" in Mueller's investigation is "tainted," and that there is nothing "that Mueller has done that wouldn't be contaminated or tainted" is laughable nonsense.

And to suggest that this is all because of Peter Strozck compounds the silliness. I'm not sure exactly what Mr. Farrell thinks Strozck did that is "illegal," but whatever it is, I've not seen the slightest hint that it could possibly be deemed to have denied Trump, or anyone else, of constitutional rights guaranteed by the 4th, 5th, and 6th Amendments.

The entire syllogism—Mueller's removal of Strozck shows that he (Mueller) knows that everything his team has gathered thus far is "garbage" that will be inadmissible in court, and therefore we should shut the entire operation down—is built on nothing at all. Complete and utter fantasy.

My guess is that Mr. Farrell knows all that; indeed, my guess is that virtually every lawyer in the country who knows anything about criminal procedure knows all that. So what is going on, I wonder?

It is ironic and surely coincidental that this attack on the utility of the evidence that Mueller is collecting comes just as particularly interesting piece of evidence has come to light: that in September and October 2016, Rick Gates, while working for the Trump campaign (as liaison to the RNC), spoke by phone on numerous occasions to an individual the FBI had linked to Russian intelligence services (and whom Gates himself described a "former Russian Intelligence Officer with the G.R.U. (Russian military intelligence)." We don't know what subjects came up in those conversations, but Gates, having pled guilty to the charges Mueller has brought against him, is co-operating with the investigation, so presumably we'll find out soon enough.

So let's see where that leaves us: we know that Russian intelligence attempted to interfere with our election in November 2016; their interference appears to have been directed in favor of Trump's candidacy; a high-ranking official in the Trump campaign was in communication with a former GRU operative who still had ties to Russian intelligence. And we should shut this investigation down?! You don't even want to know what they talked about?!

[Note: I offered Mr. Farrell an opportunity to comment on this short essay and to give his side of the story, but as of now he has not taken he declined to take me up on my invitation, saying only that he "stood behind" what he had said.]

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  1. So as far as the fruit of the poisonous tree goes, you’re telling Farrell, “You wong, sun.”

    1. Nice of David to Mapp it out for him.

      1. It’ll still take him Weeks to figure it out.

        I hate myself for writing that.

  2. their interference appears to have been directed in favor of Trump’s candidacy

    The interference being investigated by Mueller appears to have been directed in favor of Trump’s candidacy. There’s also been interference which was directed against Trump’s candidacy.

    1. Perhaps you have another source but the one you cited doesn’t show any interference against Trump’s candidacy.

      Instead it shows some limited protests against Trump AFTER the election when he was already President-elect.

      The Russians were also accused of promoting discord after the election by simultaneously holding New York rallies, one in support of Trump’s victory and another under the name “Trump is NOT my President!” according to an indictment released Friday by U.S. Special Counsel Robert Mueller. There was a separate post-election, anti-Trump rally in Charlotte, North Carolina.

      This is an important distinction since it demonstrates that while Russia wanted discord, they weren’t willing to interfere with their primary goal of electing Trump.

  3. “So let’s see where that leaves us: we know that Russian intelligence attempted to interfere with our election in November 2016; their interference appears to have been directed in favor of Trump’s candidacy; a high-ranking official in the Trump campaign was in communication with a former GRU operative who still had ties to Russian intelligence. And we should shut this investigation down?! You don’t even want to know what they talked about?!”

    Actually, we “know” very little of that. Rather, most of it is wishful thinking, at least so far.

    What Gen Flynn was accused of doing, essentially, was discussing foreign policy with the Russian ambassador as the incoming National Security Advisor, something that is commonly done, as has been for quite some time now, so that an incoming Administration can hit the street running, when it takes over on Inauguration Day. And then forgetting exactly what he had said. The whole Carter Page thing, or your whole nonsense about wishful Trump collusion is irrelevant here. Different scandal.

    1. You paint as “wishful thinking” points that you then ignore entirely.

      We do know:

      1. Russian intelligence attempted to interfere with our election in November 2016. (All of our intelligence services and all of Trump’s cabinet members/appointees who have reason to know, e.g., Mattis and Pompeo, have stated this.)

      2. Russian interference appears to have been directed in favor of Trump’s candidacy. (They bought ads favoring Trump; hacked DNC e-mail, but not hacked RNC e-mail, were released; organized pro-Trump rallies, etc.)

      3. a high-ranking official (Gates) was in communication with a former GRU operative who still had ties to Russian intelligence. (We have email, phone records, and the statements of Gates to push this far beyond “wishful thinking” and quite close to “unequivocally established.”)

      Your non sequitur into Flynn, etc. is either smoke or a demonstration you don’t understand the conversation.

      1. 1. Russian intelligence attempted to interfere with our election in November 2016. (All of our intelligence services and all of Trump’s cabinet members/appointees who have reason to know, e.g., Mattis and Pompeo, have stated this.)

        No doubt that is why the Trump Administration has imposed sanctions. But, the latest is that it appears that they didn’t really accomplish anything. Much of their money was spent after the election. And, they were playing both sides of the field, more the spoiler than anything.

        2. Russian interference appears to have been directed in favor of Trump’s candidacy. (They bought ads favoring Trump; hacked DNC e-mail, but not hacked RNC e-mail, were released; organized pro-Trump rallies, etc.)

        Sorry. No. It was aimed at both sides. There is little evidence that the DNC server was hacked from the outside, and significant evidence that it was an inside job – including statements by Julian Assange (who would know, as he ran Wikileaks), and the timestamps in the Wikileaks dump of the email make Russian hacking all but impossible. He has also stated that Guccifer 2 had nothing to do with the Wikileaks DNC email dump. And, the “Russian Signature” on Guccifer’s emails turns out to have apparently come from a Microsoft template from a Biden staffer. Notably, the DNC refused the FBI’s offer to investigate, but instead depended on their Cloudstrike contractor. Also, about the same time, there were failed attempts to hack the RNC email servers.

        1. Sorry. No. It was aimed at both sides. There is little evidence that the DNC server was hacked from the outside, and significant evidence that it was an inside job

          If by “significant evidence” you mean one speculative report by a handful of Russia-loving kooks in the Nation, and some Seth Rich conspiracy theorizing, then yes. Otherwise, no.

          1. Sorry DN,
            There is no evidence that Russians hacked the DNC server. How does one get evidence when one does not allow investigators access to the item(s) in question? If anything, that makes one more suspicious of the DNC especially with similar issues with Clinton server; more like destroying evidence.

            1. There is no evidence that Russians hacked the DNC server

              Until the FBI and CIA release their evidence to the public, their conclusions don’t count!

        2. ‘Sorry. No. It was aimed at both sides.’

          Quite right. They attacked Clinton from the right AND from the left.

      2. 3. a high-ranking official (Gates) was in communication with a former GRU operative who still had ties to Russian intelligence. (We have email, phone records, and the statements of Gates to push this far beyond “wishful thinking” and quite close to “unequivocally established.”)

        We shall see. The charges against both Gates and Manafort apparently involved activities well before they worked for the Trump campaign, except possibly some process crimes, like the ones against Gen. Flynn. I have seen nothing that would evidence any connection with Trump.

        1. “We shall see…”

          lol. Nobody said anything about the charges against Gates. That he had communications with a former GRU operative who still had ties to Russian intelligence is not really in dispute.

          Your invocation of “any connection with Trump” reveals your ridiculous bias. On one level, assuming Trump is innocent, the investigation of Gates’ contact with the former GRU operative has nothing to do with Trump. You only need go into full “SHUT IT DOWN” mode if your fear that Trump will be implicated outweighs your desire that the U.S. find out the extent to which and the methods with which Russia was able to interfere in the election. That you assume Trump is at the end of the trail of crumbs says an awful, awful lot.

    2. Is that Turkish agent Gen NSA designate Flynn to whom you refer? The guy on the payroll of two foreign countries?

  4. Love him or hate him; Justice Thomas writing for the majority:
    “Under the Court’s precedents, the exclusionary rule encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an illegality,” the so-called “`fruit of the poisonous tree.'” Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). But the significant costs of this rule have led us to deem it “applicable only… where its deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (internal quotation marks omitted). “Suppression of evidence … has always been our last resort, not our first impulse.” Ibid.” Utah v. Strieff, 136 S. Ct. 2056 (2016)

    1. “We have accordingly recognized several exceptions to the rule. Three of these exceptions involve the causal relationship between the unconstitutional act and the discovery of evidence. First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. See Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. See Nix v. Williams, 467 U.S. 431, 443-444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Hudson, supra, at 593, 126 S.Ct. 2159.”

  5. Here is the problem with your analysis, as I see it. Gen Flynn had a 4th Amdt right not to be wiretapped. This can be overcome with a warrant issued by a (federal) court – either under the Wiretap Act, or FISA. This was supposedly pursuant to a FISA Wiretap (Title I) warrant. The Carter Page Title I FISA warrants are very likely highly suspect, due to apparent pretty gross lack of candor with the FISC. And, indeed, that lack of candor may be part of why Andrew McCabe was fired a day or two before retirement, since he swore to the validity of the four FISA applications under oath, despite his department knowing significant material information that should have been included, but wasn’t.

    But the conversation at issue with Gen Flynn was very likely picked up pursuant to a standing FISA warrant on the phone of the Russian Ambassador. The problem though is that Gen Flynn was a US Person, known to be in the US at the time. Yet his conversation was unmasked and made available to the Mueller team. Why? FISA allows such unmasking in very limited situations – they have to essentially be known to be agents of a foreign power, be involved in terrorism, or a crime. There is a strong suggestion that a Logan Act violation was used as the pretext. The reason for the stringent requirements for minimization and unmasking in regards to US Persons (esp, as here in the US) is that they are oritected by the 4th Amdt.

    1. Bruce,
      The warrants may be ‘highly suspect’ to you, and to reflexive Trump supporters. Fortunately, people with a legal background–especially people with training and experience in the, um, actually obtaining of such warrants, do not share your concerns.

      But whatevs…I doubt you’ll ever see anything that will change your mind. And that’s fine…I’m sort of focusing on the other 72% of the population that is open to objective evidence.

      1. Yes, this.

        “and there are no restrictions on Mueller’s use of it to gather other evidence, for the same reason: admitting it into evidence will not compromise anyone’s constitutional rights.”

        Dramatically overstates the case. Mueller had every reason to believe that the “dossier” was a partisan fabrication, little more than a work of fiction compiled to smear the Trump campaign, and he used it anyway, multiple times, to obtain FISA warrants, while concealing this from the judges in question.

        There’s your 4th amendment violation right there.

        1. I don’t think that it was Mueller who acquired the FISA warrants for Carter Page. He just, apparently, utilized the fruits of those warrants (apparently obtained utilizing the uncorroborated Steele Dossier paid for by Trump’s enemies – Clinton and the DNC). For one thing, the timing is off – the initial warrant was obtained in October, 2016, right before the election, roughly six months before Mueller was appointed special prosecutor.

        2. As your ally Bruce points out, it wasn’t Mueller who sought the FISA warrants you are exercised about. Moreover, the warrant applications revealed that the dossier was produced for partisan purposes. The fact that you are willing to state it was “conceal[ed] says nothing good about your ability to objectively evaluate what we know.

          There was no Fourth Amendment violation, right there or anywhere else in the warrant application process (that we know of, obviously, it is always possible for something else to come to light, start spinning your unfalsifiable conspiracy theories now!)

          1. I don’t think that you can say that there weren’t 4th Amdt violations, if Mueller didn’t seek the FISA warrants. (He couldn’t anyway – they can only be acquired by the DoJ NSD and FBI counterpart). The question is how did his team get the results of at least Title I surveillance, and, likely Title VII database queries? The members involved in the Trump team were all US Persons in the United States (thus, the 4tht Amdt applies at its fullest), and FISA requires that any conversations that they are involved in be minimized, and their identities can only be unmasked in certain, very limited, circumstances – none of which appear to apply to the Mueller investigation. If you disagree, then please let me know which FISA minimization exception you believe their access falls under, and how. If you can’t, then the intercepts were not properly minimized, as required by law, and any access by the Mueller would be little different than if they installed the wiretaps themselves without a warrant (because whatever warrant there was, didn’t extend,and could not legally extend, to their use).

            1. B.S., Bruce – per 50 USC 1801 (h) Minimization procedures;

              “(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
              (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and”

              All that’s required to unmask Flynn is that the info relates to a crime, (can you show it doesn’t?) OR that his identity be needed to understand the importance of the intelligence. Of course you need to know its flynn on the phone with Russia to understand the importance.

              Your summary of the rules; ” they have to essentially be known to be agents of a foreign power, be involved in terrorism, or a crime” does not do this definition justice and is a dishonest presentation of the unmasking rules.

        3. Except that nothing in the Dossier has been disproven, so there.

          1. Actually, that is incorrect. The Dossier claimed that Trump attorney Michael Cohen had secretly met with Kremlin officials in Prague August, 2016, at the height of the presidential campaign. He never left the country.

            This is, btw, one of the reasons that the providence of the Steele Dossier is questionable. This is not something that a real spy would screw up. The problem was that it was the wrong Michael Cohen who went to Prague at that time. And, the most likely way that someone could both know that a Michael Cohen had gone to Prague then, but get the wrong one, is if they got the information from the NSA FISA Title VII databases using “about” queries (which NSA Director Rogers terminated completely, due to misuse, shortly thereafter).

            1. Actually, that is incorrect. The Dossier claimed that Trump attorney Michael Cohen had secretly met with Kremlin officials in Prague August, 2016, at the height of the presidential campaign. He never left the country.

              Sez who?

              Cohen claimed that he hadn’t been to Prague, and tried to prove this by producing a passport showing no Czech stamp. But that proves absolutely nothing; it showed a trip to Italy, and if he flew to Italy and traveled to Prague, there would be no Czech stamp. (To be sure, this trip was in July, not August, but if he met with Russian officials in Prague in July rather than August, that would hardly merit the description that the dossier had been “disproven.”)

              1. Wow. If Cohen can show that he was not in Prague in August, then yes, the claim that he met with Russian officials in August in Prague is disproven.

                If you can show that he met with Russian officials in Prague in July instead of August, then sure, saying that the dossier’s claim is disproven is hair-splitting. But there is no evidence that he met with Russian officials in Prague in July either.

                So as it stands, if you buy the lack of passport stamp (it says he exited Italy on July 17) as proof that the wasn’t in Prague in August, then the dossier’s claim is disproven.

              2. All I remember seeing was a picture of his passport cover with some mention about how it proved he’d never been to Czechoslovakia.

                1. Czech Republic

                  1. Czechia – I recently heard the Czecks would prefer we all use Czechia

                2. Why would his passport cover prove anything about whether or not he’d been to Czechoslovakia?

                  1. Dunno, but if pointing to piles of paper proved Trump stepped away from his business, a passport cover should prove a person has never been to the Czech Republic. We are not actually supposed to think too hard about it.

        4. ‘Mueller had every reason to believe that the “dossier” was a partisan fabrication,’

          No he did not.

      2. Lol. And you are the arbiter of what “legal background” is valid aren’t you. For a lawyer you sure don’t use any logic. There are lawywrs on both sides, both of which have experience in the matter, that state the warrants are suspect. But you are so self assurred that you are too ignorant to realize it.

        1. So far, I have not heard from any lawyer (whom has actually seen the affidavit and additional evidence in support!!!) conclude that the issuance of the warrant was suspect.

          But, yes, there are, so far, dozens or hundreds or thousands of pro-Trump hacks who have confidently concluded that there are significant problems, based on, I guess, their enviable psychic ability.

          Sheesh.

          1. “Hacks” is polite.

          2. Guess what? Could the reason that no one who has seen the applications has claimed that they are suspect because they are still highly classified? That doing more than the HSCI majority did, pointing to the high reliance on the Steele Dossier in the applications, despite it having been paid for by Clinton and the DNC, that Steele lied to the FBI, that the FBI wasn’t completely candid with the FISC, etc. would presumably be a violation of the Espionage Act? The HSCI majority memo went about as far as it could legally go (without disclosing classified information) to point at how suspect the four Carter Page FISA applications were.

            1. Did you read the devastating response to that majority memo? That the dossier was produced for partisan purposes was disclosed in the applications.

              “would presumably be a violation of the Espionage Act”? Lol. Please stop.

              They submitted sufficient evidence to get a valid warrant which produced sufficient evidence to get it renewed. You are grasping.

              1. I read the response memo, and considered it a joke, and intentional misdirection. And, most importantly, it failed to debunk or refute any of the major points in the majority memo. They were unable to show that the Steele Dossier was not paid for by the Clinton campaign and the DNC, or that the 4 FISA warrants wouldn’t have been issued absent dependence upon the Dossier, or that the Court was not informed properly that Steele had lied to the FBI, the source of the funding for the Dossier (hidden in an oblique mention in a footnote), etc., and that that information would have been material to the court when deciding to issue the warrants.

                Notably, the DoJ IG announced a day or two ago that he has broadened his investigation into DoJ and FBI corruption into those FISA warrant applications and related areas.

                1. “They were unable to show that the Steele Dossier was not paid for by the Clinton campaign”

                  What? Nobody is trying to show that the DNC (not the Clinton campaign, but, yes…) did not pay towards the dossier. The issue was whether that was disclosed, which it was, as the minority memo showed. That is a major point refuted by minority report.

                  “that the 4 FISA warrants wouldn’t have been issued absent dependence upon the Dossier”

                  An entirely unnecessary point to make and one that would undercut Schiff’s point anyway, so why would he even try to make it. You clearly don’t grasp the issues.

                  “oblique mention in a footnote”

                  You obviously have no idea how the law works. It is equally obvious, however, that you are a reader who skips over footnotes and assumes everyone else does. (The reference is only oblique if the reader is obtuse.)

                  “Notably….”

                  Yes, Trump demanded a special prosecutor and Sessions accommodated as best he could without violating his own minimal standards of ethics by having the IG look into it. Very notable. But not for the reasons you probably think.

          3. “Pro-Trump” hacks says the Anti-Trump hacks. How’s that TDS working out for you?

            There are too many on both sides who are so sure of themselves that they gladly ignore any evidence contrary to their firmly held beliefs.

          4. Really?
            Trey Gowdy isn’t a lawyer?

            1. Gowdy said the warrant relied on the dossier. That’s not the same as saying the warrant was suspect.

        2. Could you identify any such lawyers other than Andrew McCarthy? And he hasn’t seen the warrants.

          1. As I pointed out earlier – anyone who has seen the applications, who testifies either way as to whether they are legally sufficient, and not insufficient and misleading, and does so based on actual personal information, is very likely violating the Espionage Act, because the contents of those applications are still classified, and that means that you cannot disclose their contents directly, nor indirectly through such inferences. Notably though, the majority leaders of four Congressional committees, many of whom are experienced prosecutors in their previous lives (every once in awhile we still see Trey Gowdy on Forensic Files on HLN), and they uniformly seem to believe that the applications were deficient and misleading, but cannot give specifics because that would be illegal. Which is why they have requested a special prosecutor to investigate, and also that the DoJ IG investigate. They got the latter a couple days ago, but today, the AG said “no” to the special prosecutor because he apparently has his own prosecution team (working with the IG) already working on them.

            We shall see.

    2. ‘Agent of a foreign power’? What has been disclosed so-far in Flynn’s plea agreement papers:
      “In the [Foreign Agents Registration Act] filings, FLYNN made materially false statements and omissions, ?” Paragraph 5, Statement of the Offence, Michael Flynn Plea Agreement Documents, http://www.lawfareblog.com/michael-fl…..-documents So, he made a filing as a foreign agent & lied in those filings. If you and your business are working on behalf of a foreign government, US intel might wiretap you. There might be some theoretical way to wriggle out (e.g., Turkey isn’t Russia, but they are both foreign governments), the devil would be in the details, Flynn’s lawyers would be best positioned to know those details, Flynn plead guilty.

      1. He pled guilty due to the cost of his defense more so than the illegality of his actions. We know many others who have lied including Comey. They too would plead guilty if we subjected them to hundreds of thousands of defense costs including the mortgaging of their homes.

        1. Wait, I thought (from the president’s lawyer) that mortgaging one’s own house to piss away $130,000 dollars was no big deal. That was my one big takeaway from the Trump/porn star adultery and its aftermath. 🙂

        2. He plead guilty because it was an open and shut case against him and the deal was better than hoping for a Trump pardon.

        3. JesseAz, 3.29.18 @ 8:01PM: “We know many others who have lied including Comey.”[Citation needed] in other words, the liar here is JesseAz.

          1. Wrong again. Comey has lied under oath to Congress. That’s just one of many lies.

        4. He plead guilty to keep his son out of jail. Everybody always forgets junior.

      2. Your Statement of the Offense sure seems to read an awful lot like lying to the FBI. Only in the last item was there a claim that Flynn failed to register as a foreign agent (which one of the Podesta brothers was allowed to do right around this time, with no legal repercussions). The rest of the items involved lying, and the question then arises, how did the Mueller team know that Flynn was lying, without access to evidence acquired pursuant to a FISA warrant? And, to the extent that the FISA warrant was legitimate (i.e. of the Russian Ambassador’s phone), what was the legal justification for failing to minimize the conversations of a US Person in the United States? And the legal justification for unmasking Flynn’s identity?

    3. The Carter Page Title I FISA warrants are very likely highly suspect, due to apparent pretty gross lack of candor with the FISC.

      The only lack of candor was on the part of the GOP members of the committee trying to mischaracterize the warrant.

      And, indeed, that lack of candor may be part of why Andrew McCabe was fired a day or two before retirement, since he swore to the validity of the four FISA applications under oath, despite his department knowing significant material information that should have been included, but wasn’t.

      He was officially fired for authorizing a leak to the press during the Clinton investigation (a leak that actually put the Obama admin. in a bad light) and then allegedly misleading internal investigators about that.

      The unofficial reason seems to be that Trump considered him to be disloyal.

      1. aluchko:

        Exactly.

      2. You missed the part about lack of candor, including under oath. That is lying (possibly by omission) under oath.

        1. You seem confused about what he was fired for. The official cause included lack of candor when talking in disclosing his authorization of the Press leaks to internal investigators.

          Perhaps Trump’s true cause was his “belief” that McCabe mislead the FISA Court, but there’s about as much evidence for that as there is Trump’s 3 million illegal voters.

          I do understand why you WANT McCabe to have mislead the FISA Court, if you can’t kill the investigation on a technicality that’s very bad news for Trump and his laughably guilty cronies.

    4. FISA allows such unmasking in very limited situations – they have to essentially be known to be agents of a foreign power, be involved in terrorism, or a crime.

      And General Flynn was a paid agent of Turkey.

      Carry on, clingers.

    5. And, indeed, that lack of candor may be part of why Andrew McCabe was fired a day or two before retirement, since he swore to the validity of the four FISA applications under oath, despite his department knowing significant material information that should have been included, but wasn’t.

      It was included, it wasn’t material, and that had nothing to do with McCabe’s firing. Other than that, your statement is accurate.

      Also, you confuse requirements to conduct surveillance with requirements for unmasking.

  6. incorrect – to suggest that all evidence “obtained unlawfully,” and all evidence derived from such unlawfully obtained evidence, isn’t admissable in criminal proceedings. Unlawfully obtained evidence can be and is used in criminal proceedings all the time.

    Is this really the most charitable reading of what Farrell said? Are there no allowances for people speaking extemporaneously? What if we transcribe it with extra commas:

    “wherein any evidence obtained unlawfully, or through any sort of illegal act, on behalf of law enforcement or prosecutors, can’t be used, and anything derived from that can’t be used as evidence.”

    So he’s saying that “any evidence obtained unlawfully on behalf of law enforcement or prosecutors, or obtained through any sort of illegal act on behalf of law enforcement or prosecutors, can’t be used, nor anything derived from it.” Perhaps it could still be argued that “on behalf of” can have a meaning going beyond situations in which there is wrongdoing by the government, but that sounds like the interpretation using the worst light possible.

    Of course, this objection could be defeated by pointing to some Mueller evidence Farrell would exclude that was not acquired through government wrongdoing, and Mueller has not yet publically laid out most of his evidence, so who knows? I wonder what evidence Farrell is talking about.

    1. They always seem to forget that Ohr’s wife was also working on the dossier for Fusion GPS as well as providing the material to her husband, aka DOJ. There is the “on behalf of law enforcement or prosecutors”.

      1. They always seem to forget that Ohr’s wife was also working on the dossier for Fusion GPS as well as providing the material to her husband, aka DOJ. There is the “on behalf of law enforcement or prosecutors”.

        Did Fusion GPS obtain its information by violating anybody’s rights or breaking any laws, or were they simply sloppy and imaginative, reporting rumor as fact?

        Is all wrongdoing by the spouse of a government employee considered to be government wrongdoing? Maybe if done at the urging of the government employee but not if done independently and the result afterward handed to the government employee?

  7. “And to suggest that this is all because of Peter Strozck compounds the silliness. I’m not sure exactly what Mr. Farrell thinks Strozck did that is “illegal,” but whatever it is, I’ve not seen the slightest hint that it could possibly be deemed to have denied Trump, or anyone else, of constitutional rights guaranteed by the 4th, 5th, and 6th Amendments.”

    I would agree that not everything collected by Mueller is probably suspect. But much of the evidence seems to have originated either through the fraudulently obtained Carter Page FISA warrants, the Clinton funded Steele Dossier, or illegally unmasked (and therefore not properly minimized) FISA intercepts. And, yes, Strzok was apparently involved in Much of that. Moreover, he showed significant personal animus to Trump, tried to prevent his election, through misuse of FBI power and resources, and appears to have made improper contact with one of the judges involved. And, as noted above, evidence obtained both through fraudulently obtained FISA warrants and by illegally unmasking FISA intercepts are very likely 4th Amdt issues, if not violations.

    1. Lest we forget, Strzok also “worked” with a FISA judge that should have recused himself but didn’t until after Flynn pled. Not to mention Bruce Ohr’s wife not only working directly on the Steele dossier for Fusion GPS but also working for her husband & DOJ. IOW the Steele dossier is tainted thru several different avenues. Then we have the FBI using one source, Steele dossier, to not only request FISA warrant but also to corroborate itself from leaks to news sources.

  8. “And to suggest that this is all because of Peter Strozck compounds the silliness. I’m not sure exactly what Mr. Farrell thinks Strozck did that is “illegal,” but whatever it is, I’ve not seen the slightest hint that it could possibly be deemed to have denied Trump, or anyone else, of constitutional rights guaranteed by the 4th, 5th, and 6th Amendments.”

    I think that is is fairly well documented by now that Strzok repeatedly violated, and conspired to violate, numerous DoJ and FBI regulations, as well as probably at least the Espionage and Hatch Acts. But those mostly probably don’t go to actual 4th, 5th, and 6th Amdt violations. One big thing that very well might, is the “insurance policy” against Trump getting elected that was apparently discussed with him in Andrew McCabe’s office. If indeed, the “insurance policy” was the Carter Page Title I FISA warrants (using the Clinton and DNC funded Steele Dossier), then the 4th Amdt Rights of Carter Page and anyone else on the Trump team surveiled under it were very likely violated.

    1. It is rare to see someone spend so much time and effort producing comments for the purpose of demonstrating that they have the vocabulary, but not the knowledge or reasoning ability, to intelligently discuss the main post.

      1. It is just as rare to see someone spend as little time making a vacuous statement that fails to address the merits of the statement that you are criticizing, at least pointing out where they are wrong, or where they fail to address the subject. Maybe even worse than the posters above who resort to authority, instead of arguing the merits.

        1. Bruce:

          “I think that [it] is fairly well-documented….as well as probably at least……But those mostly probably don’t…One big thing that that very well might….was apparently…..If indeed……then the 4th Amdt Rights….were very likely violated.”

          Seriously. Seriously? Seriously.

          If there was any substance in your comment your whining about my comment might have merit, but your comment is composed entirely of material from your own fanciful suppositions and determinations of probability. Violation of “DoJ and FBI regulations” does not a 4th Amendment violation make, particularly where there is no apparent link between the violation and the search about which you are so exercised. For starters.

          Please stop confusing reality with your fevered dreams of last night.

          1. The point that I was aiming at is that I was defending my characterization of at least the four Carter Page FISA warrants as being obtained using fraudulent information. Just like if a regular Wiretap were obtained using fraudulent information. It shouldn’t be any different, in terms of 4th Amdt and the subject of this article. Part of the rules and regulations that appear to have been violated with the warrant applications is the requirement for fully disclosing all relevant information to the court. Significant relevant information appears not to have been included, including that: the FBI had authorized payment for, but terminated working with Steele because he went to the press; the 2nd corroborating source was actually Steele going through the media (Yahoo News here); the actual subject of the warrant was working for the Trump campaign; the true object of the warrant was the Trump campaign, transition, and Administration; the source of the funding for much of the underlying information was the Clinton campaign and the DNC; and that certain elements in the underlying Steele Dossier had been shown to be false. The question is not whether they were material, but under DoJ rules, whether they might have been material. There is good reason to believe that the FISC wouldn’t have issued the warrants if the underlying applications had included all potentially material information, as required by DoJ rules and regulations.

            1. Your information is bad: It is enough to point out that “the actual subject of the warrant was [NOT] working for the Trump campaign.” He hadn’t been working for the campaign for quite some time (i.e. your implication that the warrant may have intercepted discussions within the campaign is bogus, so bogus as to verge on calculated dishonesty.)

              Also, the partisan funding for the dossier was fully disclosed, your allergy to footnotes notwithstanding. (Judges reviewing warrants typically don’t have this same allergy.)

              And you are back to “there are good reason to believe”…..which is code for “I, Bruce Hayden, who knows little beyond certain terms I have read in conservative conspiracy-mongering media, think these are good reasons….”

          2. Let me add, that there are two alternative scenarios available here. Either I am a conspiracy theorist, or there is something rotten in Denmark (or in this case, at the top of the DoJ and FBI). Interestingly, DoJ IG Horowitz just announced that he is expanding his investigation to cover questions about FISA misuse, including what I characterized as those four arguably fraudulently obtained Title I wiretap warrants for Carter Page. And, AG Sessions just announced the name of the federal prosecutor who has been working with him (US Attorney John Huber). I think that there is evidence that they have been working together since last summer. We shall see.

            So, before completely dismissing my points, let’s see how this all plays out. My estimate is indictments (or stipulated pleas) by mid summer or so. If there are none, then I will freely admit having been sucked into this conspiracy theory. I hope that you can show me the same curtesy.

          3. Let me add, that there are two alternative scenarios available here. Either I am a conspiracy theorist, or there is something rotten in Denmark (or in this case, at the top of the DoJ and FBI). Interestingly, DoJ IG Horowitz just announced that he is expanding his investigation to cover questions about FISA misuse, including what I characterized as those four arguably fraudulently obtained Title I wiretap warrants for Carter Page. And, AG Sessions just announced the name of the federal prosecutor who has been working with him (US Attorney John Huber). I think that there is evidence that they have been working together since last summer. We shall see.

            So, before completely dismissing my points, let’s see how this all plays out. My estimate is indictments (or stipulated pleas) by mid summer or so. If there are none, then I will freely admit having been sucked into this conspiracy theory. I hope that you can show me the same curtesy.

            1. I can’t speak for others, but a DoJ indictment of Trump’s enemies won’t do much to convince me about the legitimacy of those charges.

            2. Re the same courtesy: I will happily and freely admit that you have been sucked into the FISA-court conspiracy theory right now!

              Who is indicted and for what matters a great deal as to what to make of the investigation and the FISA warrant process in this instance. But the good news is that conspiracy theories such as your own can simply absorb new information as part of the conspiracy (e.g., John Hubers is part of the conspiracy! That’s why no indictment this summer!).

    2. I think that is is fairly well documented by now that Strzok repeatedly violated, and conspired to violate, numerous DoJ and FBI regulations, as well as probably at least the Espionage and Hatch Acts.

      Is “fairly well documented” some sort of euphemism for “pulled out of one’s posterior”?

      1. Bingo. You have solved Bruce-speak.

      2. https://www.justice.gov/jmd/political-activities
        All Department of Justice employees are subject to the Hatch Act, 5 U.S.C. 7323(a) and 7324(a), which generally prohibits Department employees from engaging in partisan political activity while on duty, in a federal facility or using federal property. Political activity is activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group. The statute carries serious penalties including REMOVAL from federal employment.
        The Hatch Act applies to all federal employees; however, application of its restrictions is broken down into two groups, based on position…

        “Further restricted” employees are held to stricter rules that preclude active participation in political management or partisan political campaigns, even off-duty. The following Department of Justice employees are “further restricted” by statute: all career Senior Executive Service (SES) employees; ?the Federal Bureau of Investigation, and the National Security Division? Further restricted employees may not campaign for or against candidates or otherwise engage in political activity in concert with a political party, a candidate for partisan political office, or a partisan political group.

        All relevant personnel fell into one of those three categories.

      3. Further restricted employees may not: …
        Use official authority or influence to interfere with or affect the result of an election,
        …may not use official titles or positions while engaged in political activity

        My point about the Hach Act is that Strzok and Page, in their published text messages, were seen to be trying to help Clinton and prevent Trump from being elected. That is trying to interfere with the results of a federal election. They admit to doing it. They were using their official positions to do so. They said that they had to prevent Trump from being elected. We don’t know precisely what the “insurance policy” that they were going to discuss in Andy (McCabe’s) Office, but by the timing, it very much looks like the Carter Page FISA warrants. Moreover, they admit to making sure that Clinton did not face criminal charges – because they didn’t want Trump elected. Strzok was one of the agents who interviewed Clinton about her email server, and apparently was the one who changed “gross negligent” into “extremely careless” in the Dir Comey Letter explaining why no charges would be brought. (And being everywhere, also interviewed Gen Flynn).

        The Espionage Act claim is based on leaking classified information, which they also admitted in their text messages.

        1. That’s not what the text messages show, though. They admit nothing – you need to fill in a whole story between the lines.

        2. BTW – puzzle this:

          Why Do Strzok and Page still have jobs. Reassigned, but still employed, despite admitting in their text messages to a number of DOJ and FBI infractions that normally result in immediate termination?

          (My guess – they are cooperating with the AG after stipulating to fireable, if not criminal offenses)

          Ditto for FBI Counterintelligence Head Bill Priestap, Strzok’s old boss, before he was reassigned. Comey stated that he was the one who advised him not to inform the Congressional Gang of Eight of certain things, including the Carter Page FISA warrants, that they are required by law to disclose to Congress. Moreover, his people put together the warrant applIcations, along with their DoJ counterparts. He also assigned Strzok to the Clinton and Flynn interviews, etc. He is right in the middle of everything, but is the only person involved it seems who hasn’t quit, retired, or been fired, demoted, or transferred, but is still in the same position.

          As I noted above. One of two things is going on right now in the DoJ. Either I, and a numbers of others, are conspiracy nuts. Or there is a major scandal under investigation by the DoJ OIG, bolstered by federal prosecutors under US Attorney John Huber of Utah, that seems to be fairly far along, and goes to the top of both the DoJ and FBI. We shall see in the next several months which is the case.

  9. Trumpists would be hilarious, if their hero weren’t destroying the country.

    1. Each to his own. I consider intentionally failing to indict Hillary Clinton and her team for thousands of felonies under both the Espionage Act and the Federal Records Act, in regards to the conduct of official business, including the routine transfer of classified materials, on her illegal private server to be fairly destructive of the country. Numerous DoJ and State Department rules and regulations were violated. It was so egregious that at least one of her co-conspirators was allowed to sit in on her “interview” as one of her attorneys. The conclusions to the investigation were drafted well before she was interviewed, and when she was, it wasn’t under oath. All to avoid FOIA. It was so egregious that classified information from that server was found on Anthony Weiner’s laptop, when he was arrested for sexting the third time.

    2. Meanwhile FISA was weaponized for partisan political purposes by the Obama/Lynch DoJ and Comey FBI in the last year or two before leaving office. FISA was supposed to be used to surveil international threats to this country, and prevent terrorist attacks. Instead, it appears to have been bent to be used to spy on the Presidential campaign of the candidate from the other party. Until discovered by NSA Director Rogers, apparently Title VII searches of the massive NSA databases of intercepted electronic communications for non-national security reasons had apparently become common, and FBI contractors were allowed to do so with little supervision and even less need-to-know. When that was shut down, the FBI and DoJ apparently utilized information that they knew to be false, or at least highly misleading, to acquire four Title I FISA wiretap warrants for someone working for the Trump campaign, and, thus, the ability to intercept the communications of much of the Trump team, at least until they moved out of Trump Tower (the day after Adm Rogers informed President Elect Trump that Trump Towers was being bugged by the FBI).

      I personally consider both refusing to apply the law to someone because they are the Presidential candidate of the party in power, and using FISA to surveil political enemies to be destructive. But, you are free to show how Trump is worse.

      1. When that was shut down, the FBI and DoJ apparently utilized information that they knew to be false, or at least highly misleading, to acquire four Title I FISA wiretap warrants for someone working for the Trump campaign,

        Literally not one word of that is true. You can’t even manage to get the most basic facts of the timeline correct; Page was not working for the Trump campaign when any of the FISA warrants were issued. Which kind of makes the entire conspiracy theory insane.

      2. Trump could order the bombing of NYC and you would still be raving about emails, and maybe Benghazi.

      3. Watching birthers contend, in voluminous (albeit vapid) detail, that Mr. Mueller is conducting a partisan and unlawful wild goose chase — and that plenty of people involved in that endeavor should be discredited, fired, and/or prosecuted, is great fun.

    3. “their hero weren’t destroying the country”

      LOL

      Just this week:

      “U.S jobless claims dropped to 215,000 last week, the lowest level since 1973, the Labor Department revealed Thursday.”

      “Real gross domestic product (GDP) increased at an annual rate of 2.9 percent in the fourth quarter of 2017 (table 1), according to the “third” estimate released by the Bureau of Economic Analysis.”

      “The Resistance” being hysterical is not evidence of destruction.

      1. 1st, A country’s health is not defined by the health of the economy. Germany might have had great joblessness numbers under Hitler, that doesn’t mean he wasn’t destroying the country. (and Im not saying trump is Hitler, just pointing to the absurdity of arguing a country isn’t being destroyed because unemployment drops, looking at short period of time.

        Likewise, even if we are just looking at his influence on the economy, you haven’t given his protectionist moves time to have an effect on the economy yet.

        Your argumentation is like the people who argue that the stock market dipping, then recovering when announced his tariffs, indicates the tariffs are a good move for our economy.

        Talking shit about foreign leaders, imitating Duterte’s policies on drugs and putting assholes like Sessions, Perry, Ross ,Devoss , etc. etc. etc. in power are examples of destructive moves.

  10. ” a high-ranking official in the Trump campaign was in communication with a former GRU operative who still had ties to Russian intelligence” Really?

    1. Supposedly Carter Page who was not “high-ranking” and is a kook.

      1. You mean Carter Page is among “only the best,” don’t you, Bob?

  11. Under Judicial Watch’s theory, Bill Clinton would have been an innocent victim of government vendetta. When Linda Tripp recorded her conversations with Monica Lewinsky, she violated Maryland’s wiretapping law. That didn’t stop Congress from impeaching him, a judge from holding him in contempt, and the courts from suspending his license to practice. All of that was possible because the tapes led to more hidden evidence which proved he lied under oath.

    1. I think that that is a bit misleading. First, and foremost, Tripp was a civilian. She was not a government employee, so the 4th, 5th, and 6th Amdts didn’t apply to her. And, because she was not working for the government, the Fruit of the Poisonous Tree doesn’t apply. Moreover, her illegal wiretapping was not what proved Bill Clinton to have lied under oath – rather it was his semen stains on Lewinsky’s blue dress that did. He testified that he hand’t had sexual relations with that woman, yet his semen was on her dress. Moreover, that doctrine has no impact on impeachment. Congress can pretty much impeach for whatever it wants to, though actual crimes (like the one committed by Clinton) are helpful. Rather, it is, in the end, a political act, when it is applied to a sitting President, and why, despite overwhelming evidence, he wasn’t removed from office by the Senate.

      1. “Moreover, her illegal wiretapping was not what proved Bill Clinton to have lied under oath – rather it was his semen stains on Lewinsky’s blue dress that did.”

        The dress (and thus the perjury) only came to light because Tripp gave the tapes to Ken Starr. Here is the timeline:

        Fall 1997 ? Tripp records Lewinsky saying she had a sexual relationship with Clinton.
        07 January 1997 ? Lewinsky lies on her affidavit.
        12 January 1997 ? Tripp turns the tapes over to Starr who gets the FBI to investigate Lewinsky.
        13 January 1997 ? FBI agents record Lewinsky suborning perjury during a conversation with Tripp.
        16 January 1997 ? Starr gets permission to expand his probe and the FBI offers immunity to Lewinsky.
        17 January 1997 ? Clinton lies during his deposition.
        28 July 1997 ? Lewinsky receives immunity in exchange for providing all evidence she has.
        30 July 1997 ? Lewinsky hands over blue dress to investigators.

        Under the fruit of the poisonous tree doctrine, evidence independently obtained from the the tainted source or that would have inevitably been discovered despite the taint are exempt from exclusion. Because the government never would have found out about the dress (and thus purjery) if not for Tripp’s recordings, that should have been excluded since the source ? under Judicial Watch’s erroneous philosophy ? was tainted without meeting the exemption criteria.

      2. “I think that that is a bit misleading.”

        Thus my point. The evidence used against Clinton was illegally obtained and ? under Judicial Watch’s erroneous philosophy ? should have been excluded. In reality, it wasn’t because that isn’t what the fruit of the poisonous tree doctrine says.

  12. “So let’s see where that leaves us: …”

    LMAO. Poor David, I almost pity him.

    1. It didn’t take me long to get to the point where I just ignore Post posts. I sped read this one and got to:

      is laughable nonsense.
      Complete and utter fantasy.
      And we should shut this investigation down?! You don’t even want to know what they talked about?!

      Probably could have used a few more exclamation points.

      This level of hyperbole is frankly unbecoming of the Conspiracy.

      1. The post spun off a bit into speculation about events, but the initial thesis about the Poisonous Tree Doctrine not applying to Mueller either under the facts or the law is pretty hard to argue against.

        1. Maybe. Probably. But given that Post’s initial critique right out of the gate is malignant nonsense, it’s simply unbecoming of this blog.

          FWIW, I generally always find myself disagreeing with Professor Kerr. But the quality and thoughtfulness of his writing is undeniable.

          1. Yeah…we are in accord about the latter part of the OP being unfortunate in tone and scanty substance.

            Don’t know if I think it’s below this blog, but that might be the soft bigotry of low expectations.

          2. If you despise post and disagree uniformly with Kerr, I gather you are on an “all wingnut” diet?

    2. He wrote almost 1500 words, attempting to perform a critical legal analysis of an obvious hyperbole between two talking heads.

      This is the sort of article I expect from someone who has a contract to write one-per-week, and not a slightest care about content or quality.

      Next week, I expect another 1500 words about the meaning of “treason” in a Tweet from the DNC.

      1. Since yours is, I think, the third dismissal of Farrell’s and Dobbs’ very clear and pointed discussion as “hyperbole” in this thread, can I assume it is now the official talking point regarding the matter?

        But, for the sake of argument, let’s say they were being hyperbolic. What, then, is the more generous, bare bones, non-hyperbolic translation of these statements?

        Farrell: “The situation with Mueller is that every single thing that has come up or derived from all this Russia nonsense is tainted.”

        And…

        Dobbs: “So is there anything that Mueller has done that wouldn’t be contaminated or tainted?

        And…

        Farrell: “No. Because what you have is Mueller even acknowledging that he had a huge problem with Strozck being on his staff because Strozck, he’s got his fingers in everything … “

        1. Ah, yes, the standard “dismiss an opposing view as official talking points” attack. Can you please explain how a statement being a used by other people would somehow adjust the truth of the statement? I’m afraid I know of no theory to explain such a thing, so your discovery must be truly earth-shattering.

  13. intentionally failing to indict Hillary Clinton and her team for thousands of felonies under both the Espionage Act and the Federal Records Act

    at least one of her co-conspirators was allowed to sit in on her “interview” as one of her attorneys.

    FISA was weaponized for partisan political purposes by the Obama/Lynch DoJ

    the FBI and DoJ apparently utilized information that they knew to be false to acquire four Title I FISA wiretap warrants

    Watching Bruce’s comments morph over the course of this thread from calling the OP overly speculative (which I rather agree with) to pants-on-head conspiracy theorist was a pretty good way to start my morning with a chuckle.

    This isn’t about the law. It’s not about the facts. It isn’t even about the politics of delegitimization, since this kind of beyond-political-thriller narrative won’t tar Trump’s investigators and critics for anyone who isn’t already themselves with the pants on the head.

    The amount of energy Trump folks are spending keeping themselves convinced these days is pretty extraordinary.

    1. Nice to see a callback to when they pretended to care so much about national security there were mobs of them chanting for someone to be jailed for the high crime of keeping e-mails on the wrong server.

      1. Can anyone recall whether this guy was full birther or merely birther-curious?

        Carry on, clingers.

  14. If Mueller uses (in any way) information obtained by/thru the NSA (for example the Flynn recordings) how would it work with discovery when they went to court. Does someone have to testify as to how it was obtained, recorded, not tampered with etc. How would that be possible? Seems like one could ask some pretty technical questions. Does any of the warrant info that everyone seems to want to know about need to be disclosed (in violation of espionage act) etc? Can the defense get access to more information ie/for example can they request to see all other recordings obtained involving either of the individuals in the one being used? It would seem like trying to (fairly) use information obtained this way would be near impossible.

  15. So, Mr. Post has found a neat workaround against the exclusionary rule: as long as the 4th, 5th and 6th Amendments are violated not by government employees, but rather by “independent agents” (and then the relevant information is conveniently conveyed to the government), the Constitution does not apply.

    There is one problem with such reasoning: it permits a complete nullification of the Constitution, therefore it is unacceptable. If you break into someone’s office, steal evidence and deliver it to the government, then, Mr. Post, you are in fact acting as the government’s agent, and Constitutional prohibitions apply to you and your searches and seizures.

    1. Note the quotation marks around “independent agent”. If you are truly independent, the evidence may be admissible, but any trace of a collusion with the government poisons this evidence.

      1. What 4th, 5th and 6th Amendment violations are you alleging?

        1. Any that usually trigger the exclusionary rule.

    2. You do not become a “government agent” by submitting evidence of criminality obtained by your own actions, without government influence or prompting, to the government.

      1. Also a clear intent to act on behalf of the government. Examples:

        1. I enter my neighbor’s backyard without his express permission (therefore illegally), e.g. to retrieve my property blown there by wind. I discover a dead body there and notify the police. No constitutional violation since I acted on my own accord, and the discovery of the evidence had nothing to do with any government operation.

        2. Mr. Post’s own example: if he enters the White House with an intent to discover something incriminating, to help with the Russia investigation. Even though he is technically a private citizen, his actions are intended as an assistance to a government agency, so constitutional prohibitions do apply.

        “The test (…) is whether [the actor], in light of all the circumstances of the case, must be regarded as having acted as an “instrument” or agent of the state.” Coolidge v. New Hampshire,
        403 U.S. 443 (1971)

        Also, there is another side of the coin when the government, to protect evidence from the exclusionary rule, claims its agents acted as private parties – these agents become criminally liable for trespassing, burglary, kidnapping etc., whatever is applicable.

        1. I couldn’t find the quote but in Coolidge v. New Hampshire they were actual agents of the state so I’m not sure they’d apply to Post’s example.

          For other scenarios consider two rival criminal organizations, if one unlawfully obtains evidence of wrongdoing of their rival with the intent of turning that over to the police is that evidence excluded?

          What if a subordinate in a criminal org breaks into their boss’s office to find evidence to turn over to authorities?

          In both cases I think the evidence is allowed as long as the government didn’t solicit or encourage the acts.

          Also, in both cases, I don’t think you have to worry about a “nullification of the constitution” because you require a party who without urging from the government is willing to break the law to gather evidence for the benefit of the government’s criminal case.

  16. I’m not sure what you’re block quoiting, and it’s not your point, but the Dossier is not “admissible.” It’s hearsay and I don’t see anything close to an exception it could fit in.

    1. ‘s not about the dossier, but about the legitimacy of the entire investigation:
      “…that every single thing that has come up or derived from all this Russia nonsense is tainted.”

      1. I know it’s not about the Dossier that’s why I said “and it’s not your point.” Obviously Farrell is insanely wrong about everything he said. But the block quote says that the Dossier is admissible even if it violated campaign finance laws. It’s not “admissible” regardless because it’s hearsay.

        1. Not for the truth of the matter asserted. But to corroborate the veracity of other evidence…

          1. If they actually had any evidence that said the same thing, which they evidently don’t, the dossier itself being “uncorroborated”, except for news accounts which turned out to just be Steele again.

  17. Beginner question: If we *did* have a situation in which the relevant 4th, 5th, or 6th amendment rights were violated, and in so doing prosecution learned fact X, I understand that additional facts Y uncovered due directly or indirectly to knowing X are tainted; but is fact X *itself* irrevocably tainted, even if law enforcement/prosecutors later uncover independent evidence establishing X? What if they can prove that the later discovery of X would have occurred even if the initial discovery hadn’t?

    1. arch1:

      The inevitable discovery doctrine and independent source doctrine.

  18. With respect to excluding evidence, Farrell doesn’t initially say all evidence obtained illegally, he says all evidence illegally obtained “on behalf of law enforcement or prosecutors.” In what situation has a prosecutor been allowed to use evidence obtained illegally on his behalf (notwithstanding the exceptions to the general exclusion rule)?

  19. now apply the fact that the fbi used the steel dossier to get fisa warrent to spy on page.steel dossier unvarified except sent to writer and then fbi claimed it was varified by that writter.failed to notify fisa court it was created by a trump hater,funded by fusiongps org. that hillery controls. page illigaly spyed on led to trump investigation which mueller is running,,,intire event propigated from information obtained from illigal fisa inspired information,,,no tell us how muellr info can be used

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