Why the FISA memo could lead to perjury convictions of Comey & Co.

The 2018 Groundhog Day release of the Nunes FISA memo was preceded by partisan and establishment objections that its disclosure would somehow jeopardize … something.

The contents of the memo now show the objections by anti-Trump forces in this historic matter were certainly a case where they “doth protest too much.”

J. Marsolo explains why FISA warrant procurers James Comey, Andrew McCabe, Sally Yates, Rod Rosenstein, and Dana Boente have reason to be nervous:

“The Memo confirms that the political origins of the Steele Dossier, that it was bought and paid for by Hillary and the DNC, were not disclosed to the FISA court.”

In other words, it seems the procurers of the FISA warrants that are the subject of the Nunes memo failed to disclose material facts on which the FISA judges could determine the credibility of the probable cause before issuing and re-issuing the warrants.

The Fourth Amendment warrant authorizes and justifies what is otherwise a trespass -- an intrusion or encroachment on the right of security -- by government officials, but solely to protect the community against specific wrongdoers. Its requirement of oath and affirmation before issuance of a warrant helps ensure the search is based in honestly and solemnly presented facts that may be discerned -- and judged -- by neutral judicial officers.

The solemn protocol of oath and affirmation before issuance of a warrant, with potential consequences of perjury for knowingly presenting false information, helps prevent an unreasonable trespass. The ex ante protocols are expressly required by the Fourth Amendment for all warrants (“no Warrants shall issue, but upon probable cause, supported by Oath or affirmation”), and are indispensable to the right of security when the awesome power of justifiably trespassing on private properties and affairs is to be exercised via warrants.

The concept of forbidding and punishing the bearing of false witness is Biblical:  

“Thou shalt not bear false witness against thy neighbor” (Exodus 20:16), and is found in the common law on which the Fourth Amendment was built. Oath and affirmation before neutral judicial officers provide consequences of perjury when a search is sought under false pretense, and the potential consequence of a perjury conviction is, of course, disincentive to bearing false witness as a means to unjustifiably trespass by warrant.

The great English jurist Sir Matthew Hale in his History of Pleas of the Crown notes that “it seems the party that made the [false or incorrect] suggestion is punishable in such case.”

The encyclopedia of law American Jurisprudence 2d says of Oath and Affirmation: “The administering of an oath has another purpose besides that of binding a person’s conscience: it is to make the person who takes an oath or affirmation amenable to prosecution if perjured testimony is given.”

In his law review article “Bearing False Witness: Perjured Affidavits and the Fourth Amendment,” Professor Stephen Gard writes,

“Indeed, to the extent the issue has been discussed at all, scholars have concluded that the warrant requirement itself operates as an effective deterrent to … police perjury.”

It is not only affirmative misrepresentations under oath and affirmation that may constitute perjury. Omissions of material facts may likewise constitute perjury.

At 49 CFR 1104.5, “Affirmation or declarations under penalty of perjury in accordance with 18 U.S.C. 1621 in lieu of oath,” we see that such serious omissions for oath and affirmation may constitution perjury:

(c) Knowing and willful misstatements or omissions of material facts constitute federal criminal violations punishable under 18 U.S.C. 1001. Additionally, these misstatements are punishable as perjury under 18 U.S.C. 1621.

Reckless oath and affirmation in the warrant process, versus mistake, is a danger to the security of society.  For example, police see two people in the general area of a murder scene, but fail to inform the warrant-issuing magistrate that only one was covered in blood, and yet obtain warrants to search the homes of both.

Comey & Co., along with allies such as Eric Holder, have every reason to be nervous. The FBI, DOJ, and FISA warrant process seem to have been corrupted, not just by partisan politics, but potentially perjurious actors who omitted material information in the warrant-procuring process.

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