A Few Thoughts On Carter Page Warrants, Franks v. Delaware and Michael Horowitz

Marcy Wheeler did a giant post on the Page warrants and the Horowitz report, one she just updated significantly this morning. I did a comment on there, but since this is pretty much my hobby horse from long before the Horowitz IG Report was released, I decided it needed at least a short standalone post.

This concerns the Franks v. Delaware standards for warrant affidavit review, how it should apply to Carter Page’s series of four warrants signed by four different experienced and sober judges, and the complete ignoring of said standards by the typically Michael Horowitz’s usual attempt to validate his own work and time.

First, there are two types of identifiable errors in warrant affidavits for Franks v. Delaware challenge purposes. The first is what I call the error of commission, i.e. affirmatively inserting materially false information, and the second is error of omission, i.e. leaving out materially critical information. Courts are generally much more loathe to grant relief on omission claims than commission claims. This is important as to the caterwauling about Page having talked to the CIA (long ago as Marcy notes) claim. Sorry, that is so old, stale and meaningless as to be completely irrelevant for these purposes. Nobody would ever get dinged for that nonsense. It is not like the IC was running Page as a asset, this is just nonsense. But that is what uninformed howlers like Page, Nunes and Chuck Ross roll with.

Secondly, when Marcy says “Franks challenges require the defendant to prove that false statements in a warrant application are false, were knowing, intentional, or reckless false statements, and were necessary to the finding of probable cause”, that is true. But it has to be established that the actual affiant knew that as opposed to some diffuse other government agent or person may have known. And the actual affiant gets every benefit in the world of “good faith” in this regard. Always. Darn near impossible to overcome. So, that isn’t going to work either for the reasons Marcy lays out.

Third. It is infuriating that Horowitz did not address one lick of any of this. In 435 pages of his “report” Horowitz could not find just a few to address the actual standards he should have been reviewing under. Not once. Couldn’t even be bothered to mention it in passing. And it has not entered many, if at all, other post hoc discussions, either, short of at this blog. That is just laziness.

Lastly, for now, I would suggest the law review article Marcy linked to above, specifically pps. 443-449. It is not the most complex dissertation of Franks v. Delaware law and review standards, but it is one easily understandable by the lay person, especially if you read the footnotes carefully too.

I have been successful on a couple of Franks attacks in days gone by….out of a LOT attempted. Very few defense attorneys can claim even that. I cannot possibly tell you how difficult it is. But I can, without any reservation, tell you I think there is about little to no chance that the Page affidavits would not stand up with sufficient probable cause if subjected to such a review. Since Page would have never gotten there, it was derelict of Horowitz to have not done so.

It is not that Horowitz did not identify some error, whether of commission or omission, in the Page applications, he did. But he very much overplayed how significant they are under extant warrant law. Now, the argument that FBI, and other law enforcement entities, ought to tighten up their policies for submission of affidavits, whether under FISA or Title III, is well taken. They should. All defendants and surveillance targets deserve that. But under the applicable law at the time, the thought that the Page affidavits would not stand up under the mere ex-parte probable cause standard is ridiculous. Of course they would have.

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12 replies
  1. Rugger9 says:

    I would guess that Horowitz is an attorney, so aside from the obvious motivation to provide cover for the Palace and the frothy Right, why would he make what looks like a boneheaded error to not look at precedents?

    Has Horowitz tried a case?

  2. bmaz says:

    Horowitz is absolutely an attorney, and a well trained one, though not sure he has ever tried a case or argued such motions at actual Franks evidentiary hearings. Likely not, but who knows? As to the “why” question, I have no idea. My guess is that it was intentional and saying that the predication was appropriate and unbiased was as far as he wanted to go. But that is just a guess.

  3. orionATL says:

    i don’t have any problem at all saying why i think horowitz ignored any discussion of franks standards with respect to page (and did he also with respect to the other three subjects of his enormous investigation?):

    ig michael horowitz was cowtowing to pressure from the president:

    https://www.justsecurity.org/53199/trumps-target-justice-departments-ig/

    attorney general barr may also have pressured or edited the 4-suspects report.

    i suspect horowitz did the same with the andrew mccabe investigation, though on appearances mccabe was a liar (“lacked candor” in the ig’s cutesy phrasing) so the bias seems less obvious:

    https://www.cnn.com/2018/04/13/politics/andrew-mccabe-ig-report-congress/index.html

    https://www.vox.com/2018/4/13/17188262/inspector-general-report-horowitz-mccabe-comey

    the enormity in the american society of pressure from the the person to whom that society has given the office of president is difficult to overestimate, and as a practical matter of great consequence is often underestimated, particularly by those claiming they can resist it. there is very little media reporting in this society that does not display direct or covert bias in favor of the holder of the office, all the more so when the political party backing that holder is highly aggressive.

    the same holds true in spades for federal government officials. i suspect this was true not only for horowitz but for rosenstein and comey (insistent congressional demands). in all cases if you could talk with them candidly they might concede and say in their defense that they were protecting the DOJ, their office and its mission, or, e.g., the mueller investigation.

    • bmaz says:

      Horowitz is, at least theoretically, independent of Barr. However, it is crystal clear that Horowitz constantly tries to thread the both siderism needle though, and does so in the face of the underlying conclusion he gives. It leaves hanging chads, if you will, and man is that a painful metaphor.

    • orionATL says:

      i want to add something very obvious and simple but worth saying out loud about our human tendency to follow the leader:

      this compulsion, this compelling inner psychic force, is built into our species’ brain. it is ages old, and as compelling in large groups as in small. it is what makes the human social group the most dangerous social entity in the world. well, o.k., maybe bubonic plague bacteria en masse could compete, but human social groups can and sometimes do destroy everything in their path. certainly we are doing that with respect to destruction of other species with whom we share the planet and climate change aggravated by our needs and our technology.

      at heart is this: somehow or another we end up wondering if the leader does not know something important we do not know or has some magic power that will benefit us. this attribution of saving power is heightened in times of crisis.

      a good antidote to this is to go back some years and read emptywheel’s analysis (deconstruction) of the statements of nat’l security admin lawyers and other officials.

      the sham of the cheney-bush administration’s 2002 “weapons of mass destruction” campaign against iraq can be another antidote.

      • Cathy says:

        Salient point about “our human tendency to follow the leader” being a “compelling inner psychic force” since Trump’s 2016 electoral victory can be seen as a deliberate move by a significant number of folks to *reject* national political leadership. Now we’re faced with folks choosing to follow a reject-in-chief rather than (what I hope is) their own common sense.

        Carousels within merry-go-rounds…ready to get off now: I’ve spilled my popcorn & it’s not fun anymore.

        • orionATL says:

          i have to agree. this presidential leadership non compos mentis has become wearing – and increasingly worrisome and dangerous.

          though it it has been treated as “elitist” to say so, that is just more propaganda. the truth is that many of those who voted for trump were indeed substantially alienated from our political mainstream and among the most ignorant voters in the voting pool. others like the evangelicals and conservative catholics are intensely, unusually conservative. it is no accident trump prays with evangelical leaders and winks at the white supremacists. they are key voting blocks for his re-election.

          i think we will do best as individual citizens and voters if we can reflect on our personal values and filter out all the media muddy water that daily washes over our thought processes.

          • Cathy says:

            Hopefully this experiment in government-as-reality-tv helps some of us decide which aspects of leadership we’re prepared to vote for…

            I’ve heard grumbling from within another camp of local Trump supporters. Not overly invested in national culture wars, these folks are very pragmatic: Trump can grab as many private parts that aren’t attached to his own body as he wants as long as he doesn’t start wars. This group soured on Bush 43 in the wake of the Iraq invasion and hoped for change from then soured on Obama in the wake of his inability to “get us out” of the Middle East. Now they’re starting to pucker again.

            Maybe all it will take is a giant “JK!” tweet from the President, but these folks don’t appreciate the suspense.

    • bmaz says:

      We have been in extra security protocol for a while, more than a couple of links get a comment to moderation, even for the principles here if we are not careful. It is freed up now.

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