Thursday, January 23, 2020

UPDATED: FISC Opinion: At Least Two Page FISA Warrants Invalid

I'm busy right now, but will write more later. For now I'll paste in three links to articles about this development, plus commenter Cassander's comment and my (edited) response:

FISA Court Confirms Two Carter Page Surveillance Applications ‘Not Valid’

DOJ says surveillance of Trump campaign adviser Page lacked evidence

BREAKING: Spy Court Admits FISA Warrants Against Carter Page Were ‘Not Valid’


FISC finds absence of predication for Carter Page FISA applications ##3 and 4. This is big. Techn Fog is also tweeting this development.
  1. Yes, I was reading about it elsewhere. The important part is what is most likely:

    The last two warrants--to include the one obtained by Team Mueller--were the warrants invalid that were stated to be "not valid. " I've made no secret of my view that they were ALL invalid, because there was never any real Probable Cause (PC) that Page was an agent of a foreign power (Russia). What was ALWAYS known by the FBI was that Page was an agent of the FBI and the CIA.

    I say that the last two warrants being found to be invalid was always the  most likely initial outcome as a simple matter of common sense. If the FBI didn't have PC for the first two, it's unlikely that they'd later develop PC--in the circs. After all, since Page knew in the late summer or fall of 2016 that the FBI were leaking that he was a spy, a Russian agent, how likely is it that he'd START working as a Russian agent at that point?

    Of course it was ALWAYS a no brainer that they NEVER had PC that Page was a Russia agent. I assume that this opinion is based on Clinesmith's forgery, which came with the last two renewals.

    OTOH, NR says the earlier warrants are still under investigation. I'll repeat: It has ALWAYS been a no brainer that the FBI NEVER had PC that Page was a Russian agent.

    What's big about this development, of course, is that it gives Durham what he needs to turn Team Mueller inside out. Or at least to start that process. It's called predication.

This is a nice development coming up in the midst of the Impeachment Theater. Kinda like a big fish thrown onto the stage while Schiff and Nadler are trying to peddle their warmed over Russia Hoax lies.

UPDATE: Commenter Cassander raises the question of whether a "fruit of the poisonous tree" problem could arise as a result of the FISC's opinion. Here's what that means:

Fruit of the poisonous tree (objection) is a legal metaphor in the United States used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the "tree") of the evidence or evidence itself is tainted, then anything gained (the "fruit") from it is tainted as well.

So, evidence obtained illegally is "fruit" of a poisonous tree. It should be excluded from evidence and, if use of such evidence is discovered after the fact, it could lead to a conviction being overturned.

This issue is raised in the article from The Federalist that I linked above. I'm not willing to bet that this issue will arise with regard to any of the Team Mueller cases. For example, in the Flynn case, Flynn's conversation with the Russian ambassador would have been picked up through standard FISA's on the Russian Embassy--no need for the Carter Page FISA. We'll just have to wait to learn more.

However, there is another issue, which could be quite important. Here's the relevant passage from The Federalist:

The FISA court order also noted that it is a federal crime for any federal official to “intentionally…disclose[] or use[] information obtained under color of law by electronic surveillance, knowing or having any reason to know that the information was obtained through electronic surveillance not authorized” by law. The following sentence of Boasberg’s ruling is redacted, raising questions about whether the government used any information obtained pursuant to the now-invalid Page surveillance warrants in other cases.

The author, Sean Davis, suggests that Judge Boasberg is referring to potential fruit of the poisonous tree problems. That's a natural assumption, given Boasberg's wording, but there's another possibility that should not be discounted, which is this: the use of "information obtained under color of law by electronic surveillance" in the form of leaks intended to cause political harm. Obviously, President Trump and his notoriously "leaky" White House comes to mind. Is it possible that some of those leaks derived, not from WH employees, but from the illegal Carter Page FISAs? I say, Yes, it's entirely possible.

Moreover, unlike in the case of "fruit of the poisonous tree," in the case of leaks it doesn't actually matter whether any "federal official" who leaks that information "knew or had reason to know" that the FISA was illegal. It's illegal to leak such information, period--whether the FISA was legal or not.

Who would like to know what John Durham has been talking about with disgraced former FBI lawyer Kevin Clinesmith, who submitted forged documents to the FISC? I know I would! I'm betting that, either directly to Clinesmith or through Clinesmith's lawyer, Durham is reminding Clinesmith he's going to face a huge problem when it comes to sentencing. Most judges, no matter how broadminded, lose all sense of humor when confronted with a lawyer who has submitted a forged document to obtain a warrant of any sort. Clinesmith has already forfeited his legal career, but he's going to need all the help he can get if he wants to minimize his time in jail. I'm betting that Durham wants to know everything Clinesmith knows about all wrongdoing at Team Mueller--including whether any of its leaks derived from the Carter Page FISA. Durham has one helluva hammer to hold over Clinesmith.

Further, depending on what Clinesmith has to say--or has already said--Team Mueller and its members could find themselves implicated in a broader conspiracy. Remember how Comey opened an "enterprise" investigation against Flynn, Page, Manafort, and Papadopoulos? The same thing could happen to Team Mueller--a criminal "enterprise" within DoJ conspiring to defraud the government of their honest services.

And I doubt that Clinesmith is the only person caught up in this net. Interesting times, and getting more interesting by the day. No wonder GOP senators are doing crossword puzzles instead of paying attention to the Dem "managers."


  1. Note to Clinesmith: don't go for any walks in Ft. Marcy Park.

  2. Hi Mark,

    I've a question for you regarding fruit of the poisonous tree as it relates to the Flynn case.

    Suppose that the DOJ were to announce tomorrow that the investigation into Mike Flynn as an agent of Russia lacked probable cause from the get go. If that happened, do you think Powell and her team could argue that the case should be tossed REGARDLESS of whether Flynn lied to the FBI?

    1. The whole problem for Flynn is that he pled guilty and insisted on his guilt under oath at least twice, I believe. As you know, I've insisted vehemently that there never was any basis for investigating Flynn. If the judge allows Flynn to withdraw his guilty plea, my expectation is that the prosecutors would be forced to drop the case because their witnesses have zero credibility.

      Re your specific question, the revision of the false statements law, as interpreted by Scalia, means that the case wouldn't automatically be tossed. That's why I emphasize that, as a practical matter, I don't think it could go forward if the plea is withdrawn.

    2. While you do sign documents that your plea is your own decision without any influence or under duress of any kind, the reality is that many people claim guilty when not for a myriad of reasons.

      Flynn's case should be a case study in how prosecutor corruption and pressure can lead to such pleas that are not honest and, in my view, should be illegal and lead to not just firings, but criminal prosecution.

    3. IMO, a lot of this is on the judges.

  3. I speculate that FBI kept renewing the FISA warrant, hoping to catch Carter Page communicating with Paul Manafort.

    At some point, Page told the FBI that he never had communicated with Manafort. I think it's likely that Manafort likewise told the FBI that he never had communicated with Page.

    If the FBI could catch an indication that they indeed had communicated with each other, then the FBI could have charged them with lying to the FBI. Such charges then could be used to pressure Page and Manafort to snitch against Trump.


    In regard to the six months covered by the last two, admittedly invalid FISA warrants, I want to know:

    * How many communications were seized?

    * From how many people were communications seized?

    * The identities of such people

    * How did the FBI use the seized communications?

    1. Mike, according to the very lefty Emptywheel:

      "The DOJ IG is absolutely right that FBI should have included Page’s denials in these applications, which include denials that he had ever spoken to Paul Manafort (as alleged in the dossier), had a role in the Republican platform on Ukraine (also alleged in the dossier), or had a role in the email release (the question they were supposed to be answering). All those denials are, as far as we know, absolutely correct. It also excluded his denials of meeting Igor Sechin and Igor Diveykin (as alleged in the dossier), which is probably true, though FBI obtained RUMINT supporting a Sechin meeting."

      My own view is while they undoubtedly wanted to jam Page up somehow--and you may well be right as to their hoped for means to do so--they also wanted to maintain the FISA looooong past any association of Page and Manafort with the Trump campaign just for general intel purposes.

      Re your specific questions, all good ones. I'm guessing that with so many renewals there was a huge take. And I'm sure Barr/Durham are even now trying to figure out--with the aid Kevin Clinesmith--what use was made of it.

    2. Does this mean you believe that K.C. has flipped?

    3. Obviously I can't know that, but OTOH I don't think he has any choice. He admitted what he did to OIG and OIG referred to Durham. He won't get any sort of deal without total cooperation, complete cooperation. And if he doesn't cooperate he'll get hammered to the full extent of the law. I mean: a lawyer, working for the FBI, forges a doc, submits to FISC, in order to frame innocent people including the POTUS? Really serious jail time.

  4. I'd like to see a list of info gleaned as a result of the Page FISA warrant, the dates the info was obtained, the dates anyone accessed that data, and who accessed it, and then a cross-reference to "leaks" in the MSM of the same info.

    I suspect it could be "instructive."

    Gee, I wonder if Durham is constructing such a cross reference?

    Add in call metadata on all the people who saw the data that was leaked.

    Let's play "who's the leaker?"

  5. We are about five months away from mid-June. I sure hope that it's a memorable June with lots of indictments. It would be like 'Christmas in June' for me.

    I saw an article that Mueller's friends are shocked at how decrepit he's become. I think that his lack of character is coming back to haunt him.

    Brennan, Clapper, Obama, Biden, Clinton, Rice, Weissmann, Comey, McCabe, Page, Strzok, McCord, Laufman, Baker, Halper, Schiff, Nadler.... they all need to go down hard.

    1. It should be noted Mueller and Comey were thick as thieves in and out of government and used whatever juice either had to gain power and money.

      He has come a long way from being a Marine captain in Vietnam with lots of medals, many well deserved.

    2. Mark, Slightly off topic, but PowerLine has posted an article by Eli Lake, The FBI Scandal, from Commentary, that I read as poisonously specious.

      Essentially, unless I misread him, he has the evil-doers down as patriotic, heart is pure, public servants who really, really, really, thought Trump was a Russian stooge.

      I think the FBI wants us to see it this way.

      IOW, Lake, who works for Bloomberg, is pushing out some kind of nothing to see here cover up. Sorry if this is off topic. But his article, in many respects a good summary, rubs me wrong.

      And the idea of Obama as some kind of I really care about America super patriot sticks in my craw. These people are not and never were patriotic.

      Or am I in the wrong?

      I trust your judgment on this more than my own.

      Sorry for being maybe too off-topic.

    3. You're totally right. In fact, I had an exchange about this article just yesterday:

    4. I didn't even bother to finish reading Eli Lake's article at Commentary. It's filled with all sorts of gratuitous comments that distort the reporting of known facts. As Titan 28 comments above, a "nothing to see here" dismissal of FBI/DOJ corruption.

      Another instance of media cooperation with the Deep State Russia hoax/coup conspiracy. Pretty shameful to be carrying water for them at this date.

    5. Nor did I--lifes too short. I'll be kind and say whoever linked it at Powerline probably didn't finish reading it, either. OTOH, it was perfectly obvious where he was heading.

  6. A hinge point is approaching with the ongoing impeachment trial.

    The Deep State has bet the farm that 4 RINOs can be coerced into voting for the D witnesses and docs. If that succeeds, there will be chaos and distraction for many weeks and accompanied by a massive media disinformation campaign. If it fails, the trial will wrap quickly and the Deep State will be out of political options with which to stave off disaster. Once Comey goes dark, the dominoes will begin to fall quickly.

    2020 will likely become known as the "Year of the Rout."

    1. Two of the most prominent RINOs, Murkowski and Collins, have been publicly defying Schumer and his pressure tactics, so it doesn't look like that's going to work. The WSJ's Kim Strassel has an article about that today. The Dems have managed to really PO the RINOs.

      OTOH, Jay Sekulow is stating that the Trump camp isn't interested in a quick dismissal. Of course, Sekulow is part of a team, but one assumes that his public statements are done for a purpose with which the team as a whole agrees. Lots of political, not just legal, considerations going into these decisions.

      Comey's cooperation would be very big. He's another one who probably wouldn't enjoy life in prison. Some people do, but I think Jimbo wouldn't feel he was getting the respect he deserves.

  7. Durham wants to know everything Clinesmith knows about all wrongdoing at Team Mueller--including whether any of its leaks derived from the Carter Page FISA.

    What leaks do you have in mind?

    1. Nothing specific in mind. The thing is that the reach of the FISA with the two step rule is potentially so broad that it's difficult to say where it may have stopped. Mainly, I wanted to raise that as a definite possibility, rather than concentrating on the "fruit of the poisonous tree". By their nature, leaks derived from a FISA would be harder to track down than ordinary leaks.

    2. We know that Team Mueller leaked--the arrest of Roger Stone is one example, although that leak obviously had nothing to do with a FISA. But it's not a stretch to start looking.