Ray. I must disagree a little bit. "Opposition research" paid for by the other side might every well be the basis or starting point for probable cause. It just does not reach the credibility threshold all by itself. What they should have done is verified enough of the dossier to show that probable cause would exist outside the dossier. Then, they could simply identify the dossier to the Court and acknowledge that if could be a biased set of allegations, and then show how they had confirmed most of them.
Seems to me they could have rehabilitated the otherwise biased and flawed document. Also, Rule 13, always applies to federal court proceedings. It mandates that any and every time that prosecutors gain knowledge that there is a flaw in any prior document before the court that they correct it. I think it requires immediate action. That means if you learn it on a Friday, you show up Monday, or the following day if it is earlier in the week. You can never wait until your 90 days runs and just casually mention it to the judge. Seems to me we can take the timeline of when the FBI and DOJ got info that the Steele info was bogus, and see if they immediately notified the court. When Steele went to the media outlets and was trying to sell this information, they should have notified the court they had to fire him for that fundamental dishonesty, and trying to peddle that same information for both money and his own political motivation.
It is pretty hard for a DOJ attorney or senior FBI agent to claim they did not understand or simply made a mistake when only the very best qualified folks can even get into those jobs. Seems to me that they may have obtained data about Flynn lying on unrelated matters would not be sufficient to extend that warrant. Time will tell.
Several things seem to be consistently forgotten or ignored by members here remaking on the Steele dossier's inclusion in the application for a surveillance warrant:
- "Burden of proof" -- The content of a surveillance warrant don't have to rise to the same probative level that does evidence presented at trial. That the content shows "reasonable plausibility," if one will, of there possibly having been or being criminal activity and/or intentions is good enough for a court to authorise law enforcement investigators to undertake intrusive surveillance measures such as wiretaps, searches and/or seizures of information. After all, the whole point of the investigative process is to determine whether criminal activity occurred (is occurring); that process cannot be squelched merely because the current body of gathered information doesn't prove a crime has transpired.
- Sometimes an investigation reveals that something criminal did happen.
- Sometimes investigations reveal that something criminal happened but that because there is no indication of intent, the act cannot be criminally prosecuted.
- Sometimes investigations do not arrive at a conclusion about whether a crime happened or didn't happen.
- Sometimes investigations reveal that no criminal act or criminal intent to act existed.
- Materiality -- [I discuss this later in this post.]
QUOTE="OldGringo, post: 19238452, member: 68822"]then show how they had confirmed most of them[/QUOTE]
They would need to take the sort of action you describe -- good points/ideas that you introduced, and well presented, BTW -- only with regard to the dossier elements that actually appeared as an element militating for there being probable cause that a crime(s) may have been committed and/or that Carter Page was party to their commission. Thus, even if the entire document were somehow submitted (as an addendum, exhibit or appendix), a simple statement that makes clear that they are not using unconfirmed allegations as part of the basis for the warrant request -- verbiage to the effect of "though we have have not confirmed all claims/events in Exhibit "X," the Steele dossier, we have confirmed the Exhibit "X" claims we here assert contribute to our belief that there is probable cause for thinking one or more crimes may have been and may continue to be committed by Carter Page and individuals with whom he communicates via electronic means" -- would, assuming the judge grants the surveillance request, obviate prosecutors' need to remark, (pursuant to
Rule 13), subsequently on the unrelied-upon parts of the dossier's content found in the full version of the dossier.
I have not seen the FISA application that four times resulted in the FBI receiving from the FISC authorization to "wiretap" Carter Page; consequently, I don't know what elements of the Steele dossier were offered as being suggestive that crimes may have been or (then) may have continued to be committed.
Rule 13, always applies to federal court proceedings.
It is critical to note that the FISC's Rule 13 begins as follows:
(a) Correction of Material Facts. If the government discovers that a submission to the Court contained a misstatement or omission of material fact...
It is essential to not that the information omitted must be "material." What makes information material? Well, all sorts of things do; however, one thing that makes an omission of information immaterial is that information having no bearing on what one may logically conclude based on that information's existence in an argument. Consequently, while one may or may not disclose that pieces of information used to justify the assertion that intrusive surveillance methods are needed to determine whether criminally prosecutable acts occurred, the fact that the information was obtained from "this or that" source is not material. It's not because
ad hominem lines of refutation/attestation of merit are almost always fallacious.
For example, the fact that "your" enemy overheard "you" state "you" committed a crime does not take away from or make untrue the fact that "you" claimed to have committed it. Now, if "your" enemy reports to authorities that you made that claim, that that individual is "your" enemy and knowing so does indeed mean that his/her claim cannot be the sole basis for obtaining authorization for implementing intrusive surveillance techniques. Insofar as a warrant application includes "your" enemy's assertion along with other indicative information and declarations makes "your" enemy's declaration immaterial, but it is nonetheless rightly included in the warrant application.
Aside:
Rule 13, always applies to federal court proceedings.
All appellate courts have a "writ of
certiorari" process whereby an appellate court may take it upon itself to review the proceedings of lower courts within their jurisdiction. Additionally, one may petition an appellate court to undertake such a review; petitioners do so by
submitting a writ of certiorari, which if the writ is granted merit, the appellate court will commence a review of the relevant proceedings and decisions made in the relevant lower court. The thing to keep in mind is that writs of certiorari are themselves relevant submissions in appellate courts, not courts of original jurisdiction, so to speak, which is what the FISC is.
Rule 13 in the FISC's procedural rules is the FISC's "due diligence" approach to implementing an analogue to the certiorari process. It's likely, however, that something similar to Rule 13 exists in all courts.
