Robert Mueller, Russia,, FISA, FISA warrant, Nunes

Testing the FISA Warrant

By Grace Lidia Suárez

The Republicans claim that the failure to inform the FISA court judge who was considering the renewal of the surveillance warrant on Carter Page that the author of the dossier may have been paid for his work by the DNC somehow taints the warrant so that it is invalid.

There is law on this point. The case is called Franks v Delaware. 438 US 154, and there the high court held,

… where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

So here is the showing that has to be made to quash the warrant:

The target must make a “substantial preliminary showing” that:

  • The affiant made a false statement
  • Recklessly or intentionally
  • That was necessary to the finding of probable cause.

At that point the court must hold a hearing, where the target (the defendant) must prove, by a preponderance of the evidence, the allegations above. If that is proven, the court sets aside the false statements and decides whether the remaining content is not enough to establish probable cause. If the court so concludes, the warrant is voided, and the fruits of the warrant are excluded.

The Nunes Memo, which was apparently not written by Nunes but by an aide, based upon an examination of the affidavit, not by Nunes or his aide, but by Representative Trey Gowdy, states that the affidavit failed to mention that the Steele memo (the dossier), used to supply probable cause to continue the surveillance of Page, was written by a man who at some point was paid through a law firm with funds from the DNC.

Setting aside the procedural difficulties presented (hearsay, etc.), does the failure to provide that information void the warrant?

As Paul Rosenzweig puts it,

Given that the investigation began from a different source, it is almost certain that the motivations behind the Steele dossier were irrelevant to the FISA court—judges routinely grant warrants based upon information provided by sources who have an ax to grind. The question is whether or not the information is corroborated. (As one wag put it, it only matters that someone told the FBI Page was talking to the Russians—it could have been Stormy Daniels for all they cared, so long as they could corroborate the information.) Here, we will not know unless and until the full FISA application is unsealed, but it is notable that the Nunes memo nowhere says that the Steele dossier was the exclusive basis for the FISA application and acknowledges the existence of other information. So, there are reasons to think that Steele’s alleged bias played no significant role in the FISA process. All of which doesn’t mean that everything in the Steele dossier is true. But his alleged bias doesn’t necessarily ruin the credibility of his research.

The Nunes Memo concedes that the investigation was kicked off by statements from George Papadopoulos. There is no allegation Papadopolous was paid by the DNC. Also, we do not know what other information was supplied in the affidavit.

So the test is, does removing the dossier’s information render the remaining information insufficient to support a finding of probable cause?

It seems that the next step is for the court to unseal the warrant applications (see 50 U.S.C. §§ 1806 and 1825 for the procedure). Only then will we be able to determine whether: 1) whether the Steele funding sources were in fact withheld, and 2) whether that missing information is enough to void the warrant.

4 comments

  1. Franks v Delaware regards a criminal proceeding. FISC is non-criminal re intelligence, with no opportunity for redress. i agree that we should be able to examine the four applications, but given how hard it is to get information from FBI, I doubt they will see light of day. However, McCabe testified that no FISA application would have been made without the dossier.

    1. I’ve seen no case holding FISA warrants are held to a different standard. The opportunity for redress would be the same: a motion to suppress the evidence if used in a later criminal proceeding. We have not seen McCabe testimony.

      Why do you say FISA procedures are non-criminal?

      1. Just thought that a secret court proceeding may give a different result than from normal district courts. i haven’t been able to find any examples of applications being released so that one could quash the warrant–given it’s secret it would be kinda hard. Let’s all hope that all of the applications are released so we do not have to rely on summaries provided by partisans like Nunes or Schiff.

      2. The application would be released to the defendant’s attorney in order to quash/suppress evidence, probably with restrictions. Releasing all the applications would probably have a deleterious effect on security.

        In this case I would like to see the application released, even if it has to be redacted.

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