I have an idea!
Rosenstein in his role of Deputy Attorney General signed off on the Page FISA affidavit. By signing off he assured the court that he was involved in the investigation. He reviewed the document and found that the affidavit was true and correct. The subsequent release of the document just barely supports his assertion. However, the affidavit is disjointed by the redaction. Releasing the unredacted document and supporting investigative reports will either confirm or deny the sufficiency of the FISA affidavit.
I didn’t go to law school nor did I ever stay in a Holiday Inn Express. However I was a cop for thirty years and was assigned to a narcotics task force for fifteen of those years. During my assignment to the task force I drafted or reviewed over a thousand search warrants destined for state or federal courts. I also taught police officers how to go about drafting a search warrant.
The first thing I learned about drafting a search warrant, I learned in the third grade. That was in math class when the teacher said: “Show your work, it doesn’t matter if you got the right answer, if you don’t show your work.”
In drafting a search warrant, the affiant, (the guy writing and swearing to the affidavit) must show the route that he took to get to the answer. I used to tell students when you can state ten things and demonstrate that nine of them are true, then you can reasonably argue that the unknown tenth (the object of the search) is likely to be found.
The judge is entitled to know the basis for the belief. If the source is a confidential informant, it isn’t necessary to identify the informant. It is necessary to identify why the confidential informant should be believed.
Sometimes stupid cops do stupid things because it seemed expedient. These are the guys that invent a “confidential informant” or claim that another police officer gave them the information, when in actuality the information came from a wiretap. Another favorite is to make it appear that a random traffic stop, resulting in a seizure, came about by luck. No need to mention the ten narcs that have been following the crook for the three hours prior to the stop.
Cops and prosecutors are protected, once a Magistrate has signed the search warrant. If, at trial, another Judge overturns the search warrant, they have a good faith belief that they were executing a lawful order. The evidence will not be allowed but they will not face further repercussions.
What if, law enforcement (the FBI) and the prosecutor (DOJ) purposely lied in order to get the search warrant? I would say that they have conspired to commit perjury. Additionally, the conspirators are acting under color of law to deprive the target (Carter Page) of his Constitutional Rights. The continued interception of communications based on the false affidavit, is a continuation of the conspiracy.
Maybe Rosenstein and company can refuse to produce the documents by pleading the Fifth. They could argue that the documents they control and produced would tend to incriminate them.
An even better idea is one that involves jurisdiction. In the normal course of events, should a grand jury be impaneled it will probably be in Washington D.C. or Northern Virginia. This is a bad choice because the potential jury pool is irretrievably tainted. There is another alternative.
Carter Page was the subject of a FISA warrant for an extended period of time. If, you accept, as seems likely, that FBI and Department of Justice conspirators intentionally lied to the court in order to obtain the FISA warrant then there is a continuing conspiracy. That conspiracy covers not only time (the duration of the warrant) but also distance. I think it is safe to assume that Carter Page did not remain in one spot during the time the FISA warrant was active. This means that while the actors remained ensconced behind their desks in DC, the offense continued to be committed. Almost every Federal Judicial district could have a legitimate claim for venue and jurisdiction.
Let me put this into a more recognizable context. A crook steals a car in Houston, Texas. He drives it until he is captured in Omaha, Nebraska. The crook can be prosecuted in Houston, Texas where the original theft occurred. He can be prosecuted in Omaha, Nebraska where he was arrested. The Feds can prosecute him for crossing state lines in the stolen car. He can also be prosecuted in every state that he transited on the way to Nebraska. As a practical matter that doesn’t happen with auto thieves, but that doesn’t negate the fact that each state has a legitimate right to claim jurisdiction.
When it comes time to convene a Grand Jury let’s hope that Attorney General Sessions thinks outside the box. Imagine how a trial would unfold if it was held in Bug Tussle, Alabama instead of Washington D.C.