I Wrote Hundreds of Warrants. Here's Why the Nunes Memo Is Troubling

Comey in front of American flag.

Since the release of the Nunes Memo on Friday, people on both sides of the political divide have been laboring to persuade the public that the facts alleged therein are, or are not, proof of sinister (or at least questionable) motives on the part of some in the FBI and the Justice Department. Like much else in life, one’s interpretation of the Nunes Memo may depend on which side of that divide one places himself.

So, with the acknowledgement that I am a conservative and susceptible to bias toward the corresponding interpretation, let me explain why I find the Nunes Memo troubling.

First, a note about my own experience. I spent more than 30 years with the Los Angeles Police Department, a significant portion of which was spent in specialized detective assignments in which I wrote hundreds of search warrants. I also participated in investigations pursuant to FISA warrants, though in none of these was I an affiant or source of information. Now having retired from the LAPD, I am working full time with a law enforcement agency in a neighboring jurisdiction, and I still investigate crimes and write search warrants.

That said, the principles governing FISA warrants are, at bottom, no different from those that apply to warrants in more mundane criminal cases. For a warrant to be granted, an affiant must present to an impartial magistrate sufficient proof that a person is involved in criminal activity, and that an intrusion on the target’s constitutional rights, whether through a search or surveillance, is called for.

It has long been my practice to use informants sparingly. As many police officers have learned too late, if you use an informant long enough, it’s only a matter of time until he embarrasses you. An overly credulous police officer can place too much trust in an informant and be led astray, especially if the informant produces good results in the early going.

Still, the use of informants is sometimes inescapable, and when an informant does provide information to be used in a warrant, a police officer must demonstrate to a judge’s satisfaction that the information is reliable. This can either be done by showing the informant has a record of giving information that has proven true, or by independently corroborating the information.