How the law applies to actions alleged in the FISA memo

The House Intelligence Committee released a memo Friday detailing abuses of power by senior FBI and Justice Department officials who used the FISA court (FISC) to unethically and possibly illegally obtain surveillance warrants against a political campaign that they opposed. One law that may apply to those officials is the deprivation of rights under the color of law. Deprivation does not carry a heavy sentence in this case – up to one year and a $1,000 fine – but here’s the low down on the largely unknown anti-abuse statute.

TITLE 18, U.S.C., SECTION 242 – Deprivation of Rights Under the Color of Law [Full text]

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

DOJ Analysis of TITLE 18, U.S.C., SECTION 242

Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

How Title 18, U.S.C., Section 242 might apply to the FISA memo

Those who sought surveillance warrants from FISC without disclosing the source of their singular piece of evidence the Trump Dossier authored by Christopher Steele. This omission of material fact misled the court into approving the warrants on one or more members of the Donald Trump for President campaign. The dossier was paid for by Democratic Party, Hillary Clinton’s campaign and Barack Obama’s Organizing for America – the apparatus of the opposing political party in the 2016 presidential campaign. As such, the officials knowingly and willingly used the FISA court, “under color of law” to deprive Trump campaign members of their Constitutional rights to due process and privacy.

Contempt of Court

The FISA court judge(s) that were involved in the approval of the FISA warrants based on purposefully incomplete information have reason to charge the FBI and DOJ officials who signed off on the applications with contempt of court.

“I think it’s important to know who the FISA judge was, and why with all the info he’s had for some time, he has not put anyone in jail for committing fraud on his court,” Louie Gohmert, a Texas Republican who serves on the Committee on the Judiciary, said Friday.

Specifically, the applicants are in violation of Rule #13 of the United States Foreign Intelligence Surveillance Court Rules of Procedure:

Rule 13. Correction of Misstatement or Omission; Disclosure of Non-Compliance.

(a) Correction of Material Facts. If the government discovers that a submission to the Court contained a misstatement or omission of material fact, the government, in writing,
must immediately inform the Judge to whom the submission was made of:

(1) the misstatement or omission;
(2) any necessary correction;
(3) the facts and circumstances relevant to the misstatement or omission;
( 4) any modifications the government has made or proposes to make in how it will implement any authority or approval granted by the Court; and
(5) how the government proposes to dispose of or treat any information obtained as a result of the misstatement or omission.

(b) Disclosure of Non-Compliance. If the government discovers that any authority or approval granted by the Court has been implemented in a manner that did not comply
with the Court’s authorization or approval or with applicable law, the government, in writing, must immediately inform the Judge to whom the submission was made of:

(1) the non-compliance;
(2) the facts and circumstances relevant to the non-compliance;
(3) any modifications the government has made or proposes to make in how it will
implement any authority or approval granted by the Court; and
( 4) how the government proposes to dispose of or treat any information obtained
as a result of the non-compliance.

Fruit of the Poisonous Tree

“Fruit of the poisonous tree” is a legal term describing any evidence or testimony gathered by law enforcement by unlawful means. If the source, the tree in the metaphor, is tainted then anything gained by it, or from evidence gained from it, is also tainted and inadmissible in a court of law.

If the facts in the memo are correct and senior officials in the DOJ and FBI obtained evidence against any member of the Trump campaign through surveillance under the FISA warrants obtained unlawfully, then all of that evidence and anything gained from it is tainted and inadmissible.