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In FBI probe, suddenly the Right cares about law enforcement and Fourth Amendment issues

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

[Regarding this New York Times story by Charlie Savage: We Just Got a Rare Look at National Security Surveillance. It Was Ugly.]

The FBI’s conduct in obtaining the Carter Page warrant is pretty bad, even if it seems likely that they’d have gotten the warrant anyway, and despite that Carter Page wasn’t crucial to what was ultimately found. Police circumventing the Fourth Amendment is common everywhere, and that truism holds worse outside the FBI.

If you drilled down into almost any large-scale police investigation with the scrutiny Bill Barr and John Durham are drilling into the origins of the Russian election interference investigation as it concerned the Trump campaign, you’ll find the same type of shortcuts, over and over. I’m comfortable saying this because I’ve read a lot of Fourth Amendment cases.


But when civil libertarians kick up dust over Fourth Amendment issues, the Right typically scoffs because the targets of those violations tend to be minorities and people who can’t afford lawyers — people who are “probably guilty anyway,” they might say. Trump himself belittles by-the-numbers police work, indeed, often expressing support for outright police brutality.

So it’s more than a bit rich to see Bill Barr and John Durham aggressively auditing the FBI and still coming up empty with the one exception of the Carter Page wiretap, which, besides probably violating Page’s rights, didn’t advance the investigation, which ultimately led to dozens of indictments, convictions, and guilty pleas in revealing extensive coordination between the Trump campaign and the Russian military unit responsible for interfering in the 2016 election. Page was tangential to all that.

Suddenly Trump is tapping into his inner-ACLU but only insofar as it concerns him personally.

And Republicans are no less hypocritical because they all vote, en masse, to reauthorize the Patriot Act every time it comes up.

And the Democrats who line up to reauthorize it are no better.

Here are the examples cited by Savage…

First, when agents initially sought permission for the wiretap, F.B.I. officials scoured information from confidential informants and selectively presented portions that supported their suspicions that Mr. Page might be a conduit between Russia and the Trump campaign’s onetime chairman, Paul Manafort.

But officials did not disclose information that undercut that allegation — such as the fact that Mr. Page had told an informant in August 2016 that he “never met” or “said one word” to Mr. Manafort, who had never returned Mr. Page’s emails. Even if the investigators did not necessarily believe Mr. Page, the court should have been told what he had said.

Second, as the initial court order was nearing its expiration and law-enforcement officials prepared to ask the surveillance court to renew it, the F.B.I. had uncovered information that cast doubt on some of its original assertions. But law enforcement officials never reported that new information to the court.

Specifically, the application included allegations about Mr. Page contained in a dossier compiled by Christopher Steele, a former British intelligence agent whose research was funded by Democrats. In January 2017, the F.B.I. interviewed Mr. Steele’s own primary source, and he contradicted what Mr. Steele had written in the dossier.

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