‘Puter pointed out this thread on Twitter earlier today and given the nuances of Twitter, some of our followers couldn’t read it. While someone posted images of it back to Twitter, I reached out and @Popehat agreed that I could post a copy here. So the following is the content in its entirety.
I’ll repeat a point about how the law treats your lies very differently than the government’s lies, because the IG report about the Page FISA warrants shows why it’s important. The law is very strict about your lies and very lenient about the government’s lies. When the government lies in a warrant application, a defendant can challenge the resulting evidence through a Franks motion, named after Franks v. Delaware (1978). But the standard is very generous to the government and harsh to the defendant. A defendant must show that the government’s lie or omission in the warrant application was (1) intentional or reckless, not just negligent, and (2) material. (1) is hard enough to prove in a system where judges tend to take the word — and lame excuses — of law enforcement. But it’s (2) that is the real trick. In the Franks context, to be “material,” the lie or omission has to change the result. In other words, if the omitted information were added, or the lie deleted, the remainder of the information has to be insufficient to get the warrant. The problem is that the standard (usually probable cause) is so low that it tends to be easy to meet even with the lie deleted or omitted information included. So it’s rare for even a blatant lie or deceitful omission to be material, and thus overturn the warrant. Now let’s talk about what happens when you lie to the government. We’ve seen plenty of lying to the feds cases recently — usually under 18 USC 1001, false statement to the federal government. That crime also requires a showing of materiality. But a different materiality. In the false statement context, “materiality” doesn’t require the government to show that your lie made any difference, or deceived anyone. It just requires a showing that it’s the kind of information that could possibly influence the course of the government’s decisions. Hence your lies are criminal even if the government knew they were lies and they made not a second’s difference, but the government’s lies escape consequences unless they were actually determinative of the question. Every criminal lawyer knows this, it’s been the case for many years, and very few people give a shit. And so the system grinds on, noticed only when it catches up someone on our team.
Courtesy of @Popehat on Twitter. Link to tweet
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