I think that’s the strategy from Judicial Watch: trying to salt the earth that Mueller may be planting with the results of his investigations. David Post of The Volokh Conspiracy is quite annoyed with Judicial Watch’s Director of Investigations Chris Farrell, who was recently interviewed on Fox News:
There is a great deal in this that is malignant nonsense, starting at the very beginning, with Farrell’s statement of the doctrine: that “evidence obtained unlawfully … can’t be used, and anything derived from that can’t be used” in a criminal proceeding. …
Notice, please: evidence that was obtained in violation of specific constitutional guarantees – the 4th Amendment’s protection against unreasonable searches and seizures, and (as established in other cases) the 5th Amendment’s protection against self-incrimination, and the 6th Amendment’s right to counsel – is inadmissable, as is evidence derived from that unconstitutionally-obtained evidence.
It is thus simply incorrect – incorrect as in “I’d flunk a 1st year Criminal Procedure student for suggesting it on an exam” incorrect – to suggest that all evidence “obtained unlawfully,” and all evidence derived from such unlawfully obtained evidence, isn’t admissable in criminal proceedings. Unlawfully obtained evidence can be and is used in criminal proceedings all the time. …
My guess is that Mr. Farrell knows all that; indeed, my guess is that virtually every lawyer in the country who knows anything about criminal procedure knows all that. So what is going on, I wonder?
It is ironic and surely coincidental that this attack on the utility of the evidence that Mueller is collecting comes just as particularly interesting piece of evidence has come to light: that in September and October 2016, Rick Gates, while working for the Trump campaign (as liaison to the RNC), spoke by phone on numerous occasions to an individual the FBI had linked to Russian intelligence services (and whom Gates himself described a “former Russian Intelligence Officer with the G.R.U. (Russian military intelligence).” We don’t know what subjects came up in those conversations, but Gates, having pled guilty to the charges Mueller has brought against him, is co-operating with the investigation, so presumably we’ll find out soon enough.
So if you saw that interview and were suitably impressed, think again. If you like World War II Pacific Theatre analogies, Farrell was a tiny destroyer, desperately making smoke, as the enemy’s big ships came barreling along. And it appears Mr. Post was not taken in, not in the very least.
I would take Mr. Farrell’s pronouncements in the future with a very large grain of salt. So large, in fact, that I might choke on it.
