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The Memo and the Mueller Probe

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Former Attorney General and U.S. District Judge Michael Mukasey has this op-ed in the WSJ with the above title and the subhead "If the investigation arose from partisan opposition research, what specific crime is he looking into?"

The regulation that governs the jurisdiction of the special counsel requires that he be "provided with a specific statement of the matter to be investigated." The letter from Deputy Attorney General Rod Rosenstein appointing Mr. Mueller says he is to "conduct the investigation confirmed by then-Director James Comey before the House Intelligence Committee on March 20, 2017," which covers "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump," and any matters that may arise "directly" from that investigation.

But the investigation then disclosed by Mr. Comey was not a criminal investigation; it was a national-security investigation. Possible Russian meddling in the 2016 election is certainly a worthy subject for a national-security investigation, but "links" or "coordination"--or "collusion," a word that does not appear in the letter of appointment but has been used as a synonym for coordination--does not define or constitute a crime. The information, and misinformation, in the Steele dossier relates to that subject.

The Memo

The controversial memo by the House Intelligence Committee has been released and is available here.

Prior to the release, Kimberly Strassel had this article in the WSJ titled "Memo Reading for Nonpartisans: Ignore the spin. When the document goes public, here's what to look for."

I don't see anything in the memo that constitutes a disclosure that is damaging to our intelligence operations, which would be the primary reason to keep it secret.  In the run-up to release, the FBI maintained that the problem was material omissions.  It certainly is possible to mislead with half-truths, as we have noted many times on this blog.  The obvious remedy would be to supply the missing material, if that can be done without making damaging disclosures.

The memo alleges that the FBI sought a FISA warrant against an advisor to the Trump campaign without informing the FISA court that a substantial portion of the information submitted for probable cause was paid for by the Clinton campaign.  What would "the rest of the story" be that could make this not serious misconduct?  That other information provided made such a compelling case that this information was immaterial?  That seems unlikely. 

Strassel notes, "Ignore any arguments that the dossier was not a 'basis' for the warrant or only used 'in part.' If the FBI had to use it in its application, it means it didn't have enough other evidence to justify surveillance."  That doesn't quite follow.  It's not unusual to pile on everything you have even if you think less should be enough.  After all, the court might not agree with your probable cause assessment.  But even if the other evidence was abundant, it is still misleading to provide the Clinton-campaign-funded information without disclosing that it was so funded.  We will wait and see what the FBI has to say.
"A brick is not a wall," evidence guru Dean Charles McCormick famously wrote long ago.  The evidence that meets the required burden of proof for a particular proceeding, whether it be probable cause, proof beyond a reasonable doubt, or something in between, need not be a single item that carries the weight by itself.

In Fourth Amendment cases, the U.S. Supreme Court since 1983 (Illinois v. Gates) has rejected rigid criteria for probable cause.  All the facts must be considered, and the question is whether they add up to a "substantial chance of criminal activity."  This "is not a high bar."

Back in 2008, there was a raucous party in a vacant house in D.C.  Did the police have probable cause to believe this was an unlawful entry?  Today's opinion in District of Columbia v. Wesby describes the lots of little things that add up to the modest level of evidence needed for probable cause. 

The partygoers were released soon after arrest and no charges were filed against them.  Instead of being glad of their good fortune, they decided to sue the cops.  The District Court allowed this case to go to trial, and a jury awarded $680,000 for their comparatively minor inconvenience.  With attorneys' fees, it came to over a million dollars.  The D.C. Circuit affirmed, and the Supreme Court today reversed without dissent.  See page 11 for the Court's disapproval of looking at each brick rather than the wall.

The Carpenter Argument

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The U.S. Supreme Court heard oral argument today in Carpenter v. United States, No. 16-402, the much-watched case regarding whether a warrant is required to obtain records from a cell phone company showing which cell towers the defendant's phone connected with at the time that robberies were being committed.  The transcript is now available on the Court's website.

I don't think it bodes well for Carpenter that Justice Kennedy peppered his lawyer with questions throughout his argument and said not a word during the government's argument.  That said, though, Justice Kennedy is among the most difficult to "read" from oral argument, so it is not certain he will vote for the government.

Justice Gorsuch clung to a property rights theory like a dog to a bone, while DSG Dreeben came close to saying, "Seriously? How can anybody think the customer has a property right in these records?"  Of course he didn't really say that, but I will bet a beer he was thinking it.

In a FedSoc teleforum afterward, Prof. Orin Kerr thought the argument went well for Carpenter and that he might get a majority of votes but not on a single theory.  I hope not.  We really don't need another fractured opinion that leaves everyone scratching their heads.  (Kerr wrote an amicus brief supporting the government, a rarity in academia, to put it mildly.)

A major theme in the argument was that privacy needs to be protected but that actually drawing the line would be difficult and possibly arbitrary.  It really would be better for the rules to be made legislatively in this area.

Stay tuned.

Warrants for Data Stored Abroad

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Jennifer Daskal has this op-ed in the NYT:

In 2013, United States agents served a warrant on Microsoft seeking the emails of a suspect in a drug case. Microsoft balked at the request, saying that the data was stored on a server in Ireland and out of the reach of United States law enforcement. To access the data, the United States would need to make a request to the Irish government through diplomatic channels -- a slow and burdensome process. The government fought back, arguing that the Washington State-based company could access the emails from the United States, without ever stepping foot in Ireland, and was required to comply.

Monday, the Supreme Court agreed to hear the case this term. Its decision -- which will come after two lower courts sided with the government and the Second Circuit reversed -- will determine the extent to which United States law enforcement can access data held abroad. Microsoft will argue that the data is outside domestic law enforcement's direct reach. The government will make the case that its warrant authority covers data held anywhere, so long as it can be accessed by a company operating from within the United States.

Both of these positions have troubling implications. What is needed is a solution that falls between these two extremes. Because the courts can't provide this, Congress needs to step in.
In principle, I agree that Congress should decide this issue.  As a matter of practical politics, though, good luck with that.  There are lots of issues in criminal justice that the legislative authority should decide but doesn't.  Their focus is elsewhere and the issues are sometimes tough, so the honorable representatives are just as happy to punt the ball the courts.

Might this issue be different?  Maybe, because it involves large and influential companies.  We will see.

Short List from the Long Conference

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Today the U.S. Supreme Court announced the short list of cases it decided to take up during its end-of-summer Long Conference on Monday.  The long list of cases not taken up (meaning the lower court decision stands) will be announced when the Court opens its new term on the First Monday in October.

Criminal cases include several Fourth and Fifth Amendment claims, one on the "plain error" standard of review on appeal, and one on military commissions.
When Sri Srinivasan was nominated to the U.S. Court of Appeals for the D.C. Circuit, people fell all over each other to proclaim how smart he is and how well qualified he is.  But smarts are not enough.  If a lower court judge uses his smarts to evade Supreme Court precedent, he can do a lot of damage.  For instance, he might set a criminal free for a reason which has nothing to do with the reliability of the evidence or the justice of the case.

Orin Kerr at VC has this post on United States v. Griffin, decided by the D.C. Circuit on Friday.  Griffin was suspected of being the getaway car driver in a gang murder.  The police applied for a search warrant and provided the magistrate with the reasons they suspected him.  In asking to seize electronic devices found in the home, they merely relied on the common facts that "gang/crew members involved in criminal activity maintain regular contact with each other ... and they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices ...."  The warrant authorized seizure of "all electronic devices."

Orin is interested in the substantive Fourth Amendment aspects and particularly computer law, and he discusses at some length the complexity of the overbreadth issue.  From the very fact that the issue is difficult enough to interest a law professor and have him declare this to be "an important computer search case" one ought to suspect that the invalidity of the warrant was not so clear as to disentitle the prosecution from relying on the good-faith exception of United States v. Leon.  One would be correct.
The U.S. Court of Appeals for the Ninth Circuit today decided In re National Security Letter, No. 16-16067:

In this case, we consider challenges to the constitutionality of the law authorizing the Federal Bureau of Investigation (FBI) to prevent a recipient of a national security letter (NSL) from disclosing the fact that it has
received such a request. 18 U.S.C. § 2709(c). An NSL is an administrative subpoena issued by the FBI to a wire or electronic communication service provider which requires the provider to produce specified subscriber information that is relevant to an authorized national security investigation. Id. § 2709(a). By statute, the NSL may include a requirement that the recipient not "disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records" under the NSL law. Id. § 2709(c)(1)(A). Both the information request and the nondisclosure requirement are subject to judicial review. See id. § 3511. (Because § 2709 and § 3511 work together, we refer to them collectively as "the NSL law.")

Certain recipients of these NSLs claim that the nondisclosure requirement violates their First Amendment rights. We hold that the nondisclosure requirement in 18 U.S.C. § 2709(c) is a content-based restriction on speech that is subject to strict scrutiny, and that the nondisclosure requirement withstands such scrutiny. Accordingly, we affirm.
The opinion is by Judge Ikuta, with Judges R. Smith and Murguia concurring.  I think a petition for rehearing en banc is nearly certain.

Cellular-site data tracking

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This morning, the U.S. Supreme Court agreed to hear the case of Carpenter v. United States (16-402).  The issue is whether the warrantless search and seizure of cell phone records that detail the location and movement of the cell phone user over a period of time is permitted by the Fourth Amendment.

In this case, the defendants were charged with nine armed robberies in violation of the Hobbs Act (18 U.S.C. §1951).  At trial, the Government introduced the defendants' cell phone records to show that each defendant used his cell phone within 1 1/2 to 2 miles of several locations during the times the robberies occurred.  The Government obtained these records pursuant to the Stored Communications Act (18 U.S.C. §2703(d)), which permits the Government to require disclosure of certain telecommunication records when "specific and articulable facts show that there are reasonable grounds to believe that the content of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."


The U.S. Supreme Court has once again unanimously reversed the Court of Appeals for the Ninth Circuit on a criminal justice issue.  This time it was the Notorious Ninth's evasion of Supreme Court jurisprudence on police liability for allegedly excessive force.  In this case, police reasonably fired their weapons when a person in a shack they were searching pointed a gun at them.  It turned out to be a BB gun, but the officers did not know that at the time.

If law enforcement officers make a "seizure" of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force? The Ninth Circuit has adopted a "provocation rule" that imposes liability in such a situation.

We hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.

BAC test evidence and DUI

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In Birchfield v. North Dakota, the Supreme Court held that breath tests, but not blood tests, may be administered without a warrant as a search incident to lawful arrest for drunk driving.  The Court also held that motorists may not be criminally punished for refusing to submit to a blood test on the basis of legally implied consent.  In Missouri v. McNeely, a plurality of the Court held that the natural dissipation of alcohol in a motorist's blood stream alone does not create a per se exigency that would justify a non-consensual blood draw without a warrant.

Criminal Justice Legal Foundation filed a brief in a companion case to Birchfield arguing that a motorist's statutorily implied consent to submit to a search of his or her breath, blood, or urine after lawful arrest for suspicion of DUI falls within the consent exception to the Fourth Amendment's warrant requirement.  We argued that requiring all law enforcement officers to secure a warrant after lawful arrest is impractical due to the vast differences in resources in some jurisdictions.  We also argued that it was reasonable for a state to mandate consent as an alternative to a warrant as a condition of using its public roadways.  The public's interest in protecting innocent people and keeping drunkards off the roads is significant in comparison to the privacy interests of an arrested motorist who made the choice to drink and drive.

Last week, the high Court's jurisprudence tied the hands of law enforcement and hindered prosecutors from obtaining probative evidence of blood alcohol concentration levels in at least two incidences.

Trump Is Right About 'Stop and Frisk'

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Former NY Mayor Rudolph Giuliani has this op-ed with the above title in the WSJ.

One of the strategies that helped bring about an 85% reduction in crime in New York City between 1994 and 2013 was the careful and appropriate use of "stop and frisk." This practice dramatically reduced the number of guns, knives and other dangerous weapons, as well as illicit drugs, in the city.

But according to candidate Hillary Clinton and moderator Lester Holt during Monday night's presidential debate, stop and frisk is "unconstitutional." They are wrong. In Mrs. Clinton's case, it's the usual misrepresenting she does when she does not know what she is talking about. As for Mr. Holt, if a moderator is going to interfere, he should do some homework and not pretend to know the law when he does not. Mr. Holt and NBC cannot overrule the U.S. Supreme Court.
See my previous post on this subject for the citation and an excerpt of the case.  Continuing with Mr. Giuliani's piece:

Stop and Frisk

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The controversy over the practice of "stop and frisk" has entered the presidential campaign.  Let's begin with a trivia question.  Who wrote the Supreme Court decision upholding "stop and frisk" upon reasonable suspicion?

(a)  William Rehnquist
(b)  Antonin Scalia
(c)  Roger Taney
(d)  Earl Warren
Akhil Reed Amar of Yale Law is a rarity -- a prominent legal academic who has his head screwed on straight when it comes to the Fourth Amendment exclusionary rule.  He has this post at SCOTUSblog titled The Court after Scalia: The despicable and dispensable exclusionary rule.  No doubt about where he stands.

I agree with what Professor Amar says about the exclusionary rule, but not so much what he says about the Justices.  He begins by noting the difference between cases where the Court was focused on the substantive Fourth Amendment question and cases where it focused on the exclusionary remedy:

In countless cases over the last forty years, the Court has held that the Fourth Amendment was violated by the facts at hand, and has thus ordered or upheld evidentiary exclusion....   But whenever the modern Court has squarely focused on the exclusionary rule itself - giving express thought to whether the rule's contours should be widened or narrowed - the Justices have almost always ruled against the rule, and have done so in case after case dripping with implied or express contempt for it.
This contempt is well founded:

The exclusionary rule has no sound footing in any originalist legal source material. None. Nothing in the text as originally understood supports it; no framer ever endorsed it; no judge in America for the first century after independence ever followed the exclusionary rule or any genuine prototype of it. On one of the very few occasions when a lawyer tried to argue for exclusion before 1876, the lawyer was laughed out of court by America's preeminent jurists, led by Joseph Story.
A bit of rhetorical exaggeration there.  Laughing wasn't Justice Story's style.  But he did make very clear that the exclusionary argument had no basis in the law at that time.  My brief in Utah v. Strieff has more on this.

Mapp v. Ohio, the case that imposed the exclusionary rule on the states, was wrongly decided as an original matter.  A long string of decisions has chipped away at it, limiting the damage it does to some extent, but the case has not been overruled.  Why not, and what of the future?
All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  

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