Franks A Lot

Okay, I have been complaining about the lack of understanding of Franks v. Delaware warrant evaluation standards forever. I know there were ones previous, in other times, I am pretty sure there have been more times since, even if less formally on Twitter or in comments, but here was a big one in relation to the continued insanity over the appropriate warrant, and subsequent reauthorizations, as to Carter Page.

The universe of commenters on this, including Michael Horowitz, the vaunted DOJ IG, have ignored the mark. Not short sold it, but totally ignored it. Between Horowitz’s deficient 435 page “report” and, now, the SSCI Report, all 952 pages of it, neither has addressed the applicable standard as to Page. That is 1,387 pages of refusing to mention for a word, much less discuss for a sentence, paragraph or page, the actual controlling authority on the issue. And, no, no discussion of it all is honest or complete without it.

But, as I have relentlessly pointed out, Page was absolutely a proper CI target. The warrant issue is about far more than the whiny Carter Page. It is about much more than FISC warrants. The same law applies to all, and it is being made a joke through through the Page nonsense.

The latest example is this case in NY State Court. I am not going to embed a bunch of tweets, read the thread for yourself. The pertinent case is described in this thread by Sam Feldman, as noted by Carissa Byrne Hessick. Later Scott Greenfield noted, appropriately, that the instant decision was done by the court, even if bogusly, under the old 1974 NY State case of People v. Darden. But Darden is bad law in every regard. For a modern court to glom onto it is maybe not stunning, but extremely disconcerting.

Darden, among other infirmities, relied on Roviaro v. US, a case that so stands for the opposite of what the Darden court advocated, it is hilarious. Literally the exact opposite.

But this is where the discussion is now thanks to the bogus discussion regarding the curious and disturbing character Carter Page. The micro analysis of all this has been ludicrous. If you cannot address the basic standards of warrants, how they apply to the initial, and then reauthorization warrants, for Page, and far more than just noisy FISC ones, it is a failed discussion.

I think a lot of people did not take me seriously as I relentlessly said that the warrant issue, whether FISC or Title III, was about far more than Carter Page. Well, here is a concrete example, even under related state law. There are serious issues here, and they go far deeper than the charlatan Carter Page. These issues are universal and critical.

11 replies
  1. earlofhuntingdon says:

    In Roviaro v. U,S.,

    Justice Harold Burton, writing for a majority in a 6-1 decision, held that Roviaro’s interest in preparing his defense outweighed the public interest in protecting John Doe’s identity. The Court focused on the fundamental requirements of fairness, reasoning that where the identity of an informant or the contents of an informant’s communications are relevant and helpful to a defense, the government’s privilege must give way.

    As UNC Chapel Hill law professor Carissa Byrne Hessick noted, knowing the identity of a witness and being able to examine them are fundamental to the American system of adversarial justice. It is not procedure or a tecnicality, as Tom Clark argued in dissent, it is fundamental.

    As an aside, I am reminded that the S.Ct. is sometimes composed of towering personalities and intellects. In this case, Warren, Black, Frankfurter, Douglas, Harlan, Brennan.

    • earlofhuntingdon says:

      Based on your comments on an earlier thread, I thought the Franks you were talking about were free congressional postage or hot dogs at the ballpark.

    • P J Evans says:

      Witnesses who can’t be identified or questioned sound so very much like proceedings under divine-right rulers. Or dictators.

      • bmaz says:

        The presumption has always been that properly documented and certified CI’s “can” get protected. But that is very few, and the presumption has also been when a proper showing is made, the cops and prosecution have to put up or shut up. That is how it is all supposed to work. As even Roviaro admits. Darden turns all that on it’s head in New York.

        • Ginevra diBenci says:

          I just read Darden. Thank you, bmaz, for highlighting this issue and linking to the cases. Though not a lawyer, I’ve practiced some amateur law (helping a friend going pro se write briefs, take court notes, etc.) That experience, while protracted and punishing, made sense. This, for all the reasons you point out, does not. Darden sticks out incongruously from the jurisprudential argument, a sore thumb I’d think would be an anachronism today.

          • Ginevra diBenci says:

            Now that I’ve finished Franks v. Delaware, using Darden seems insane. It’s like the only aspect of Franks anyone is learning is the Rhenquist/Burger dissent, if that.

            • bmaz says:

              Yes. And if you look at Roviaro before it, it seems almost more insane.

              I know I am a broken record on this stuff. But it matters. It was never easy to win a Franks challenge, indeed almost impossible. I won a couple out of gawd knows how many attempts. Nevertheless, it was the standard, and still is. It ought at least be acknowledged.

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