The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.]