Dissecting the MEMO: An Application is Not a Trial

The MEMO points out that an application is involved in getting a FISA warrant. It does not tell where the application comes from or what it involves. It does though tell us that it must be certified by a higher up in the FBI and then it goes on to the Department of Justice (DOJ) for approval. These are steps that are necessary prior to it being presented to a judge.

The MEMO indicates who the officials were who approved the four known FISA warrants against Carter Page. For the FBI it was James Comey for the first three and then acting director Andrew McCabe; for the DOJ it was Sally Yates – who by the way was concerned with the FBI’s information on General Flynn that she advised the counsel to Trump Donald McGahn that Flynn might be compromised by the Russians; Dana Boente who was acting deputy attorney general – who by the way was just picked to be the FBI’s next general counsel; and  Rod Rosenstein the present deputy attorney general. The MEMO  does not make it clear which of the four each approved.

These individuals approved an application that was sent to them. They had nothing to do with the creation of the application. That was done by the lower levels of the DOJ and FBI. How it works is those at that level open up an investigation, do the research and investigatory work, put it together often with help of others in their office and an assistant U.S. attorney, and then when they believe they have sufficient information for a FISA order they send it to the  people mentioned for their approval. These people, like the judge, review it to see if what is set out in the application is sufficient to justify the issuance of the order.

My job on the state level was to review the affidavit of the police officers.  If it met the necessary standards I would then prepare an application based on the information the police officers presented me. I would then give to the district attorney who would review it and authorize me to bring it to a judge.

You have to understand that the people who are giving the approval are a couple of steps away from those who are gathering in the information. They are looking to see if the material in the affidavit provides the probable cause, which I described in a prior post, to believe that Carter Page was involved with the Russians in some underhanded manner which was a threat to the United States. They were not required to look behind the information provided in the affidavit.

The MEMO says the FISA warrants are “dependent on the government’s production to the court of all material and relevant facts.” That is true. Those facts must present enough information for a probable cause finding.

The MEMO says “This should include information potentially favorable to the target of the FISA application that is known to the government.”  This has never been a standard to get a warrant. It is a standard that is used during trial where the government must provide exculpatory evidence that it has to a defendant. You do not have to provide the reason why an informant is cooperating.  That is not relevant to the finding of whether a target is probably involved in committing the criminal actions.

That a person may have an ulterior motive in providing information to authorities does not mean if he tells the truth about a criminal and provides sufficient facts to establish the search of the criminal will provided evidence of a crime does not mean that the criminal must be allowed to continue his criminal ways.

The MEMO would apply to the affidavit the rules of trial. That is not the way the system can possibly operate.

 

9 thoughts on “Dissecting the MEMO: An Application is Not a Trial

  1. the FISA request failed to provide exculpatory evidence . . .by statute all signers knew of their obligation to present the weakesses in their data . . .they all failed to do that . .

    Yes, you can get warrants without disclosing all pro-accused info; but not in FISA courts

    A general rule of law is in every ex parte proceeding, parties must be careful and so must judges/courts to protect the rights of those not present . . .in other words, exculpatory evidence should be introduced by the government when it is IMPUGNING/de facto INDICTING parties not present before the cour

    General Flynn was set up, framed, as were the Probation Officers. Councilor Turner and John Connolly . . .Flynn was set up and framed to get at Trump . . .John Connolly was set up and framed to get at Bill Bulger

    The depth of duplicity, underhandedness, unfairness, corruption in the DOJ in DC and Boston is beyond the pale.

    1. Please…you are reading Brady rules in to the FISA application process…if that were the case law enforcement would never get warrants because they would essentially be having to meet a “Beyond a reasonable doubt,” standard rather than a Probable Cause standard.

  2. The Application does have to pass the Aguilar-Spinelli tests of reliability and basis of knowledge. The Steele Dossier is plainly deficient in those respects. The application erroneously claimed corroboration by the Yahoo reports. The applicants “assessed” to the Court that the Yahoo report was from a separate source. If this convicts the FBI-DOJ only of gullibility, it convicts Clinton-DNC-Fusion GPS-Steele of much more.

    1. Actually…it does not…the “totality of the circumstances,” must be shown to establish probable cause….old rule still used in some states like MA, but abandoned by SCOTUS

  3. Trying to fit nine pounds of memo in a eight pound bag . Even the FBI realizes they hoodwinked the FISA Judge they brought this political baggage before , but did not reveal that politics were the motivation for the warrant .

  4. The argument is nonsense. The bosses who sign off on the application have to know the information is reliable and based on personal knowledge ( Spinelli). The Grassley memo points out the information came from Russian government sources which would be per se unreliable. The bosses at the DOJ and FBI can’t avoid culpability by saying we just rubber stamp what is presented to us. Are they just automatons? Their names are on it. They swear under oath it is true. They are required to verify the information and not blindly accept what they are given. 2. Steele was proven to be untrustworthy. He promised the FBI he wouldn’t talk to the press then he broke his word. The FBI severed it’s ties with him. Yet later the FBI used the Fake Dossier to get FISA extensions. They knew Steele couldn’t be trusted yet used his bogus material. The Dossier was not only unverified it was provably false in many respects. Yet the Grassly report says the Dossier provided the bulk of the affidavit. 3. It is amazing how gullible some Westerners are. Millions of Europeans were demonstrating against Reagan’s deployment of the Cruise and Pershing missiles. His action led to the build down of nuclear forces and the end to the Cold War. The Peace movement opposing Reagan was a paid Soviet front. The Russian Dossier is just more Kremlin disinformation that the naive in the West are buying. Were the Obama DOJ and FBI working with the KGB ( FBS) to undermine Trump? 4. Bill is right. All the financial connections with Russia are in the Clinton campaign and the DNC. Yet the FISA warrants are only aimed at Trump? 5. Is Steele a Russian double agent in the mold of Kim Philby? Or just an incompetent? A British pol said recently that there are no James Bonds left in British Intel only Austin Powers types.

  5. Why was it necessary to spy on Carter Page, the “rooshan stooge super-spy”?

    Henry Barth has previously pointed out that Carter was an Undercover Employee of the FBI.

    AM Joy claimed on PMSNBC , in 1940’s B gangster movie language, that the FBI had previously “nicked” Carter. Maybe he also had a moll somewhere.

    Carter Page – “rooshan stooge super-spy/nobody.”

    And again – how does the fake and fraudulent “golden shower” Fusion GPS/DNS/Clinton dossier fit in to justify spying on Carter Page?

    I’ve seen interviews of Carter Page on TV – seems like a nice guy with some PhD’s.

    http://www.anncoulter.com/columns/2018-02-07.html#read_more

    Because of this confusion, the FISA court that was supposed to be used against terrorists and spies is instead being used against Trump supporters. Here’s Malcolm Nance, terrorism analyst, smugly warning Page back in March 2017 on MSNBC:

    “I have a message for him, all right? U.S. intelligence is not going to be coming at him like a lawyer, right? We will turn on the entire power of the U.S. collection system. And if he is lying, it is going to become very well-known very quickly. … If there’s a FISA warrant out there … we have the ability to collect anything on him, including all of his finances and every relationship he has with anybody in this world.”

    The reason Rosenstein appointed Mueller was that he believed the “salacious and unverified” dossier. We know that because Rosenstein personally signed one of the FISA warrant applications based on the dossier — backed up by a Yahoo article, which was also based on the dossier.

    A cabal of anti-Trump fanatics cooked up the Russia collusion story, and don’t-rock-the-boat bureaucrats went along with it, so we now have a behemoth investigative monster chasing unicorns.

  6. ugh….ugh…ugh

    in other news….

    see link for full story and documents on
    how the FBI jammed the Jimmy Carter reelection

    https://www.muckrock.com/news/archives/2018/feb/08/casolaro-reenactment/

    February 8, 2018
    FBI cites mystery FOIA exemption to withhold Danny Casolaro death video
    Expert declared reporter’s death a suicide after seeing a video “reenactment,” which the Bureau won’t release and won’t explain why
    Written by Emma Best
    Edited by JPat Brown
    As part of the investigation into the death of journalist Danny Casolaro, the local police created a videotaped “reenactment” of his alleged suicide. The tape was used later to help an expert conclude the death was a suicide, and then seized along with the other evidence by the federal government. In response to a FOIA request for a copy of the tape, the Federal Bureau of Investigation has declared that it’s exempt from release – but won’t say why.

    According to the Bua Report, which has been found to be inaccurate and incomplete on several key points, the tape was prepared by the local police in Martinsburg, West Virginia along with the help of the West Virginia Deputy Chief Medical Examiner who performed the autopsy (after the body had been embalmed in violation of West Virginia law). The tape was provided to Dr. Henry Lee, who, according to his website, has “consulted on more than 8,000 criminal cases in 46 countries, including the O.J. Simpson trial and the JonBenet Ramsey murder investigation,” as well as the Vince Foster case.

    The “reenactment” tape was reportedly among the evidence considered by Lee while concluding that the death was “not inconsistent with a suicide.” As part of his report, Lee offered a very detailed theory of Casolaro’s death, citing the autopsy report and the crime scene and corpse photographs (which show surprisingly little aside from some of Casolaro’s wounds).

    also see how FBI protect Bill Hillary Clinton
    http://www.fbicover-up.com

    Hillary Clinton Vince Foster murder
    FBI cover-up
    Hillary Clinton remains silent about this evidence, submitted to the court by Patrick Knowlton, John Clarke, and Hugh Turley. Proof of the FBI and OIC cover-up was published in a 538 page book Failure of the Public …

    bonus read

    http://finding-aids.lib.unc.edu/04866/

    expand/collapse Collection Overview
    Size 60.0 feet of linear shelf space (approximately 20,000 items)
    Abstract Alexander Charns, a lawyer from Durham, N.C., wrote “Cloak and Gavel” (1992), a study of the relationship between the United States Supreme Court and the Federal Bureau of Investigation. Photocopies of Federal Bureau of Investigation (FBI) files concerning the relationship between the United States Supreme Court and the FBI. Included are files on individual United States Supreme Court justices; circuit courts; government officials; the American Bar Association; wiretapping; protests and local politics; and the Jencks decision, which relates to testimony by government officials. Also included are photocopies of “official” and “confidential” of J. Edgar Hoover files and papers from a lawsuit filed by Alexander Charns against the FBI in order to gain access to restricted documents.
    Creator Charns, Alexander, 1956-

  7. Presenting the concatenation that leads to an application to the FISA court seems to argue that there can be no responsibility at any point. But that cannot be. The legal process cannot be anarchy.

    Who then is accountable? Answer – The son of a bitch that gets to put his signature on the application. Will this always be fair? Probably not. Little in life is guaranteed to be fair.

    In every organization there is rank. Rank has its privileges. Sometimes all that means is that your head goes on the chopping block first. Zero sympathy for for those whose signatures graced the corrupt FISA applications. Zero.

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