“We reverse, and we hold that, where the defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.”
Franks v. Delaware, 438 U.S. 154 (1978).
In that case, the police officer completely fabricated evidence to get a warrant. The Delaware Supreme Court was somehow ok with that, but the US Supreme Court held as quoted above. While the Court’s decision was limited to whether or not you could have a hearing, it’s been more or less taken for granted that that showing would also defeat the warrant.
There are two points of flexion in that holding (bolded above by me):
1. The culpability of the officer, and
2. The existence of other evidence that could lead to probable cause.
(I think I’ve brought up both of these, earlier in this discussion.)
I’m not aware of the Supreme Court elaborating on either of those issues, directly, but I’m confident that a review of state courts and district courts will show that they’ve been interpreted as follows:
1. The inclusion of false statements of third parties do not defeat a warrant unless the officer/affiant had knowledge that the statement was false. (Police find a body outside an apartment, woman tells police she heard neighbor Joe having an argument the night before. Police get a warrant for Joe’s apartment. Warrant is still good even if Joe’s attorney somehow proves the woman didn’t hear a scuffle, The police had no idea she was lying.)
2. One materially false statement, knowingly made, does not negate a warrant unless there’s insufficient other evidence to establish probable cause. (Police find out that the woman was at a bar the night before but find a knife at the crime scene with Joe’s fingerprints on it. Use both the knife and the woman’s statement to get a warrant. Warrant is still good.)
The best you’ve got is that the dossier hasn’t been proven or disproven, as far as you can tell based solely on publicly available information. If the affiant only knew as much as you did, the first prong is not met. That’s in a vacuum, without considering any corroborating evidence like the Popadopolous stuff. With respect to the second point: the application I glanced at was about 10 pages of material and 402 pages of redactions, so unless they failed to make probable cause anywhere else in that 412 pages, your argument fails.
There’s also a third issue from U.S v. Leon, a 1984 Supreme Court case, which is that evidence obtained from a faulty search warrant (where the magistrate/judge has mistakenly approved a bad warrant) is admissible as long as they relied on it in good faith, which the Court went on to say basically means that a reasonable law enforcement officer would believe that probable cause existed. This is significant in the context of what I labeled “2.” because it’s basically saying that other evidence that merely comes close to probable cause is good enough to save a warrant that contains these flaws.
My feelings about Donald Trump aside, I 100% do not understand how you guys laugh off anonymously sourced WaPo articles, but consider these whacky legal theories beyond reproach. To my knowledge, not a single motion has been filed to challenge this warrant. That alone ought to convince you that this idea that it’s a silver bullet is total ******** and make you question the credibility of whatever source you’re hearing it from.
Even if you’re not saying the investigation is fatally flawed, just saying it’s evidence that Donald Trump is being treated unfairly because he’s a Republican or not “establishment,” the existence of a Supreme Court case dealing with the exact same issue shows that his treatment of suspects is not unique. I’d even go further and say that it’s not only not unique but not even uncommon, in my experience.
So if you’ve got a legitimate problem with this, and it’s not just a matter of having a convenient argument to defend Trump, you have a problem with the system and the way we catch criminals. So that begs the question: why are you cheering for and hoping Trump will appoint of a bunch of Clarence Thomas clones to the Court? It seems pretty inconsistent.