FISA Warrant

The government has released the FISA search warrant application over the weekend: Breaking-Carter-Page-FISA-file-released. I have never seen a FISA application. However, I have drafted or reviewed over a thousand search warrant applications destined for Texas or Federal Courts. This is what I know:

The search warrant application must establish “Probable Cause.” It exists when the totality of circumstances set forth in “the four corners” of the application establish criminal activity is afoot. Additional documents, affidavits, and reports can be attached, provided they are incorporated into the affidavit by reference. Any other conversations and reports not included in the affidavit are ignored.

Warrant applications typically have two levels of boilerplate. Boilerplate means language that is, at the first level, used to satisfy legal requirements as to form. That is it runs in the name of the state or federal entity, describes the person who is the target, the location, offense suspected and evidence to be seized. The second level is language that serves to qualify the affiant as to knowledge, experience, and ability to draw conclusions based on the evidence provided.

Information included in a search warrant does not have to meet the same standard as for court. Hearsay, rumor, and opinion are allowed. The source of the information does not have to be identified, as long as a basis for believing the source is established. For instance, this language would be sufficient: “a credible and reliable person (CI #1) has provided your affiant with information on several occasions in the past. CI #1 has demonstrated their knowledge and ability to identify conduct and evidence associated with the offense. The information provided by CI #1 has led to the arrest of suspects and seizure of evidence on each occasion.”

It is acceptable to cite texts, training, and even newspaper articles to demonstrate why a conclusion is acceptable. In this case, newspaper and magazine articles were cited to assert a fact. The articles, sources, and authors were not identified. Had I been the judge I would have rejected those assertions out of hand for three reasons. First, the information is open source, the identities have already been published. Second, just because it is published doesn’t make it true or accurate; keep in mind weather reports. The current news reporting climate is such that competing news organizations do provide descriptions of events that are diametrically opposed. Finally, a report published as factual one week could be overtaken by events and be disproved the following week.

This, in an of itself, doesn’t invalidate the application the information is cumulative and the standard is the “totality of circumstances.” This means when all the know facts are taken together, the indication is more likely than not a reason to believe that the request for the search is valid.

After the boilerplate, what follows is the story. Judge this is what the good guys did, this is what the bad guys did, here is the agreement between them, and there is the result. In attempting to analyze the affidavit, one is hindered by the redactions. Looking at the flow, the FBI makes a pretty good case that Page knew and associated with a bunch of Russian bad guys and spies. Contemporary reports indicate that in order for anybody to do business in Russia, those are the people to see. If association with unsavory people was a crime, then anybody who has ever attended a Democratic party function would be in the same boat with Carter-Page.  There are no reports of actual conversations or documents that would tend to show that Carter-Page agreed to do anything illegal.

The FBI goes on to describe candidate Trump’s change of positions where he became more conciliatory towards Putin and Russia. This represents the smoking gun to the FBI, prima facie evidence that Carter-Page influenced Trump at the behest of the Russians.

The FBI would do well to remember the childish ditty about Humpty Dumpty. Humpty Dumpty sat on a wall. He had a great fall. There were numerous witnesses to the fall who gathered together to put Humpty Dumpty together again. Despite all the witnesses, nobody was able to describe the circumstances surrounding the fall. No witnesses mentioned that he was pushed. It is a step too far for the FBI to assert that Humpty Dumpty was pushed. The parallels are the same between Carter Page and Humpty Dumpty.

The search warrant application runs to a hundred pages, however starting at page 33 the application is heavily redacted. Some of the headings would lead me to believe that the FBI even redacted standard boilerplate language. The only reason I can see to do that would be to make it appear there is additional information, when in fact there isn’t.

I have reviewed or drafted over a thousand search warrant applications. I usually have a definite opinion as to whether or not I have met the probable cause burden. In two cases, that I can recall, the AUSA and I reached a point where we just didn’t know. We felt like we had established probable cause but would not be surprised if the judge disagreed. The uninitiated may try and point to the low rate that search warrants are rejected by judges. They may claim that this as an indication that the judges are in league with law enforcement. The explanation is a lot simpler. The requirements for form and content are well known by all parties. Submitting a sloppy, inadequate application tends to piss judges off. Pissed off judges do not sign applications that displease them. They also remember and keep score which will impact future applications.

Does this application pass muster? I think that if the affidavit related events and people involved in the Clinton campaign it would have been rejected by the judge. Since it was directed at the Trump campaign, it was deemed acceptable. I think that it was a marginal application and that margin was razor thin. Had the judge been charitable, he would have rejected it. I wouldn’t have allowed one of my people out of the office with such a product.

I don’t know that the FBI established a case against Carter-Page. Take a look at page 98, the FBI inadvertently made a case for Aggravated Perjury on the signers so it isn’t all bad.

Update I don’t know who the FBI used as the primary source and gave them the benefit of the doubt. News stories and other Blogs indicate that the primary source was the report commissioned by Democratic operatives (the Steele Report) to provide dirt on the Trump campaign. If that is the case, I think the FBI was obligated to identify the source. Failure to do so is a material omission and means the affidavit lacks probable cause and would lead to the suppression of evidence gained by subsequent warrant. This destroys the criminal case.

If the goal was political embarrassment and manipulating the election, then everything is just fine.