"illegal" evidence in the Roger Stone investigation?
July 12, 2020 5:19 PM Subscribe
An acquaintance is arguing that the Roger Stone investigation was illegitimate because it made use of the Steele dossier, which is "illegal" evidence (i.e. paid for by Democrats). Even though the investigation began long before that, he says that the dossier "taints" the investigation. He's a cop and claims to know the law, but I'm not so sure.
This police officer is citing the "fruit of the poisonous tree" doctrine.
1) The Steele dossier prompted the escalation of the investigation of Roger Stone and the appointment of Special Counsel Robert Mueller.
2) The Steele dossier was illegal evidence (i.e. paid for by Democrats).
3) The investigation into Roger Stone relied on illegal evidence and was thus itself illegal.
4) President Trump was correct in granting clemency because the investigation was illegal.
My problems with this line of thinking are as follows:
1) The investigation of Roger Stone was in progress before the Steele dossier was released.
2) The Steele dossier doesn't mention Roger Stone at all.
3) The Steele dossier was not used as evidence in Roger Stone's trial.
When I presented these points to the officer, he said:
The full conversation is here: here.
This police officer is citing the "fruit of the poisonous tree" doctrine.
1) The Steele dossier prompted the escalation of the investigation of Roger Stone and the appointment of Special Counsel Robert Mueller.
2) The Steele dossier was illegal evidence (i.e. paid for by Democrats).
3) The investigation into Roger Stone relied on illegal evidence and was thus itself illegal.
4) President Trump was correct in granting clemency because the investigation was illegal.
My problems with this line of thinking are as follows:
1) The investigation of Roger Stone was in progress before the Steele dossier was released.
2) The Steele dossier doesn't mention Roger Stone at all.
3) The Steele dossier was not used as evidence in Roger Stone's trial.
When I presented these points to the officer, he said:
"As a police officer, I have studied law and therefore understand chain of evidence and burden of proof. The dossier was most definitely used as an escalation of evidence used to appoint a special prosecutor. Also, my point about FISA warrants stands. They were improperly used as a partisan weapon and therefore all evidence gained by them and the special counsel is tainted. Also, as far as the timeline is concerned, the first search warrant against Stone was issued on Aug. 7, 2017 which is after the dossier was delivered and after the special prosecutor was appointed, so, yes, the dossier has everything to do with why Roger Stone was investigated."Is this a valid legal argument?
The full conversation is here: here.
Best answer: IANAL, but this "Fruit of the poisonous tree" defence is not something your acquaintance developed based on his own careful reading of the law. Looking at your conversation thread, it seems like your acquaintance is just parroting long-standing Republican talking points about the Mueller investigation. Here's a an article about how "Fruit of the poisonous tree" doesn't apply at all. And this was published in 2018. Feel free to carry on the coversation with your acquaintance, but something tells me he/she is arguing in bad faith, and no amount of information will be enough. I would probably just disengage and save yourself some grief.
posted by reformedjerk at 5:45 PM on July 12, 2020 [24 favorites]
posted by reformedjerk at 5:45 PM on July 12, 2020 [24 favorites]
Besides the incorrect understanding of the “fruit” stuff, the Jeb Bush campaign were the ones who initially hired Fusion GPS to look into Trump. Since he’s spouting talking points (and these are 100% Republican talking points) that get that basic fact wrong (Republicans being responsible for this doesn’t have the same ring to it), you can ignore everything that comes later.
posted by sideshow at 6:29 PM on July 12, 2020 [3 favorites]
posted by sideshow at 6:29 PM on July 12, 2020 [3 favorites]
Stone was convicted for lying to Congress and for witness intimidation. Nothing to do with the dossier. He was shitting on the investigation, knowing he'd get away with it, and he did.
That your friend defends him says a lot about your friend, and about the culture of his workplace.
posted by RobotVoodooPower at 7:03 PM on July 12, 2020 [14 favorites]
That your friend defends him says a lot about your friend, and about the culture of his workplace.
posted by RobotVoodooPower at 7:03 PM on July 12, 2020 [14 favorites]
Different people have learned different rules from life. Here is one of mine: don’t give any more weight to legal analysis supplied by cops than you’d give to legal analysis from anyone else. They are less well-trained in the law than they think. This is especially true when they begin sentences with “Based on my training and experience,” or a reasonable facsimile thereof.
posted by PaulVario at 7:15 PM on July 12, 2020 [25 favorites]
posted by PaulVario at 7:15 PM on July 12, 2020 [25 favorites]
Under the Fourth Amendment, evidence gathered subsequent to a government agent’s unreasonable search or seizure is subject to exclusion from the government’s case-in-chief in a prosecution against that defendant. This is the Exclusionary Rule, it’s the remedy generally available for violations of constitutional rights in a criminal trial involving evidence. Reasons why the evidence in this case might not be subject to exclusion:
Was this evidence the fruit of an unreasonable search or seizure?
Was this evidence performed by a government actor or an agent?
Did this search violate Roger Stone’s rights, as opposed to someone else’s?
If no to any of these questions, the Exclusionary Rule would generally not apply. If it did, and no other exception applied, the government may still proceed with a prosecution, and if the evidence suppressed (and its fruit) is not important for establishing a fact relevant to the jury, it wouldn’t necessarily make any difference to the outcome.
I’m not an expert on the facts of this case, but the easiest way to dispose of this whole issue seems to be to point out that if the Steele Dossier somehow violated someone’s Fourth Amendment rights, that person is not Roger Stone. I don’t see how he would have standing—the government generally gets to use evidence gathered in violation of X’s rights in a prosecution against Y.
But I would just drop it, you can’t get anywhere with someone arguing like this. His shaky understanding of the Fourth Amendment means his claim about being a cop is totally plausible though.
posted by skewed at 8:19 PM on July 12, 2020 [7 favorites]
Was this evidence the fruit of an unreasonable search or seizure?
Was this evidence performed by a government actor or an agent?
Did this search violate Roger Stone’s rights, as opposed to someone else’s?
If no to any of these questions, the Exclusionary Rule would generally not apply. If it did, and no other exception applied, the government may still proceed with a prosecution, and if the evidence suppressed (and its fruit) is not important for establishing a fact relevant to the jury, it wouldn’t necessarily make any difference to the outcome.
I’m not an expert on the facts of this case, but the easiest way to dispose of this whole issue seems to be to point out that if the Steele Dossier somehow violated someone’s Fourth Amendment rights, that person is not Roger Stone. I don’t see how he would have standing—the government generally gets to use evidence gathered in violation of X’s rights in a prosecution against Y.
But I would just drop it, you can’t get anywhere with someone arguing like this. His shaky understanding of the Fourth Amendment means his claim about being a cop is totally plausible though.
posted by skewed at 8:19 PM on July 12, 2020 [7 favorites]
Police officers know as much about law as landscapers know about plant physiology.
Ask him for his storied legal opinions on Benghazi and Clinton's email server.
posted by benzenedream at 11:19 PM on July 12, 2020 [9 favorites]
Ask him for his storied legal opinions on Benghazi and Clinton's email server.
posted by benzenedream at 11:19 PM on July 12, 2020 [9 favorites]
A lot of cops would deeply resent having that standard applied to their own work.
Anyway, of all the Mueller prosecutions, Stone's is perhaps the one least reliant on that bullshit premise about Steele. He was communicating with Guccifer 2.0 (i.e. the GRU), suggested he knew about the Podesta hack, sought a pardon for Assange; he then lied under oath, intimidated a witness, and made thinly-veiled threats against the presiding judge.
It's the GIF of the guy tapping his temple, with the caption "can't be jailed for obstruction of justice if you obstruct the obstruction of justice investigation." Helps if you're doing it for the person with plenary powers of clemency.
posted by holgate at 8:12 AM on July 13, 2020 [2 favorites]
Anyway, of all the Mueller prosecutions, Stone's is perhaps the one least reliant on that bullshit premise about Steele. He was communicating with Guccifer 2.0 (i.e. the GRU), suggested he knew about the Podesta hack, sought a pardon for Assange; he then lied under oath, intimidated a witness, and made thinly-veiled threats against the presiding judge.
It's the GIF of the guy tapping his temple, with the caption "can't be jailed for obstruction of justice if you obstruct the obstruction of justice investigation." Helps if you're doing it for the person with plenary powers of clemency.
posted by holgate at 8:12 AM on July 13, 2020 [2 favorites]
2) The Steele dossier was illegal evidence (i.e. paid for by Democrats).
You can stop right there. The Steele dossier was not illegal evidence. On what grounds is it illegal? If you hire a private detective to find evidence of a crime against a family member, that evidence is not illegal simply because you paid for it.
Police pay for evidence all the time. They pay snitches (confidential informants) for evidence, especially in drug cases. Ask your cop acquaintance if he knows of any payments to confidential informants in his department. Does he consider that illegal?
In this case, the FBI didn't even pay the informant. A third party did. But that is irrelevant.
posted by JackFlash at 10:20 AM on July 13, 2020 [4 favorites]
You can stop right there. The Steele dossier was not illegal evidence. On what grounds is it illegal? If you hire a private detective to find evidence of a crime against a family member, that evidence is not illegal simply because you paid for it.
Police pay for evidence all the time. They pay snitches (confidential informants) for evidence, especially in drug cases. Ask your cop acquaintance if he knows of any payments to confidential informants in his department. Does he consider that illegal?
In this case, the FBI didn't even pay the informant. A third party did. But that is irrelevant.
posted by JackFlash at 10:20 AM on July 13, 2020 [4 favorites]
The Steele Dossier would be evidence only if were submitted in court to the jury. Since it wasn't, the exclusionary rule doesn't apply because you can't exclude something that isn't included in the first place.
Lots of investigations begin with information that isn't admissible evidence. An anonymous phone tip isn't admissible in court, but it can be grounds to start an investigation that does lead to admissible evidence that then results in a valid conviction.
Even when illegally obtained evidence is presented in court, there are a number of exceptions to the exclusionary rule that allow a conviction to stand (e.g., harmless error, inevitable discovery, good faith, independent source, attenuation).
posted by fogovonslack at 1:25 PM on July 13, 2020 [1 favorite]
Lots of investigations begin with information that isn't admissible evidence. An anonymous phone tip isn't admissible in court, but it can be grounds to start an investigation that does lead to admissible evidence that then results in a valid conviction.
Even when illegally obtained evidence is presented in court, there are a number of exceptions to the exclusionary rule that allow a conviction to stand (e.g., harmless error, inevitable discovery, good faith, independent source, attenuation).
posted by fogovonslack at 1:25 PM on July 13, 2020 [1 favorite]
This thread is closed to new comments.
posted by sallybrown at 5:40 PM on July 12, 2020 [18 favorites]