Michael Gaynor
"Fruit of poison tree" protects President Trump as well as you and me
By Michael Gaynor
March 20, 2018

"The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all."

Urban Dictionary (www.urbandictionary.com/define.php?term=sore%20loser):

"sore loser is someone who loses in a fair competition but whines about it on a constant basis or tries to change the rules to their advantage once its evident that they have lost.

"Hillary Clinton is a sore loser."

Whining is bad form and annoying, but it is legal.

Trying to undo and/or frustrate the result of a presidential election by pretending that the winner colluded and/or conspired with Russia and frustrating the winner's efforts to pursue his or her political agenda by creating time-consuming distractions is downright despicable and some tactics may be illegal.

On March 17, 2018, President Trump tweeted with respect to the Mueller investigation: "The Mueller probe should never have been started in that there was no collusion and there was no crime. It was based on fraudulent activities and a Fake Dossier paid for by Crooked Hillary and the DNC, and improperly used in FISA COURT for surveillance of my campaign. WITCH HUNT!"

The President's right. In the United States the government is supposed to investigate crimes, not people. That probe should not have been conducted by a Special Counsel, certainly not one who had been interviewed by President Trump because he wanted to be reappointed as Federal Bureau of Investigation Director, rejected, and then promptly appointed Special Counsel.

Assistant Attorney General Rod Rosenstein may as well have appointed Hillary Clinton!

On March 19, 2018, President Trump tweeted with respect to the Mueller investigation: " A total WITCH HUNT with massive conflicts of interest!"

The word "total" strikes me as an overstatement, since there was some sinister Russian activity pertaining to the 2016 presidential election that warranted investigation and the indictment of some Russians strikes me as appropriate.

Otherwise, that tweet is right on target, as Sean Hannity, Sarah Carter, John Solomon, Greg Jarrett and Laura Ingraham have been proving on "Hannity" and "The Ingraham Angle."

What we need is a Special Counsel to investigate the United States Department of Justice and the Federal Bureau of Investigation (FBI) for presidential election-related abuse of power and obstruction of justice that began during the Obama Administration.

Hopefully, a Special Counsel soon will be appointed for that purpose and a lawful investigation will be conducted.

Former United States Attorney Joseph diGenova just joined President Trump's legal team, but surely another suitable Special Counsel can be found who is not intimidated by the Deep State.

The surveillance or "wiretapping" of the 2016 Trump presidential campaign was not lawful, because the Foreign Intelligence Surveillance Act (FISA) warrant was predicated on an unverified and uncorroborated dossier without which there would not have been an application for the warrant and the extensions of the warrant.

Former National Security Adviser Michael Flynn was properly terminated by President Trump for lying to Vice President Michael Pence, but the Mueller investigation's prosecution of Flynn was an abuse of power and violation of Flynn's constitutional rights.

The "fruit of the poisonous tree" doctrine should be applied uniformly, not arbitrarily.

It is "the doctrine that evidence discovered due to information found through illegal search or otherunconstitutional means (such as a forced confession), may not be introduced by a prosecutor. The theory is that the tree (original illegal evidence) is poisoned and thus taints what grows from it. For example, as part of a coerced admission made without giving a prime suspect the so-called 'Miranda warnings' (statement of rights, including the right to remain silent), the suspect tells the police the location of stolen property. Since the admission cannot be introduced as evidence in trial, neither can the stolen property" (https://legal-dictionary.thefreedictionary.com/Fruit+of+the+Poisonous+Tree).

Justice Oliver Wendell Holmes delivered an opinion of the United States Supreme Court in Silverthorne Lumber Co. v. United States, 251 U.S. (1920) that supports President Trump's position that the Mueller investigation is tainted and should be closed.

It is best to read exactly what Justice Holmes wrote:

"This is a writ of error brought to reverse a judgment of the District Court fining the Silverthorne Lumber Company two hundred and fifty dollars for contempt of court and ordering Frederick W. Silverthorne to be imprisoned until he should purge himself of a similar contempt. The contempt in question was a refusal to obey subpoenas and an order of Court to produce books and documents of the company before the grand jury to be used in regard to alleged violation of the statutes of the United States by the said Silverthorne and his father. One ground of the refusal was that the order of the Court infringed the rights of the parties under the Fourth Amendment of the Constitution of the United States.

"The facts are simple. An indictment upon a single specific charge having been brought against the two Silverthornes mentioned, they both were arrested at their homes early in the morning of February 25, and were detained in custody a number of hours. While they were thus detained representatives of the Department of Justice and the United States marshal without a shadow of authority went to the office of their company and made a clean sweep of all the books, papers and documents found there. All the employees were taken or directed to go to the office of the District Attorney of the United States to which also the books, &c., were taken at once. An application was made as soon as might be to the District Court for a return of what thus had been taken unlawfully. It was opposed by the District Attorney so far as he had found evidence against the plaintiffs in error, and it was stated that the evidence so obtained was before the grand jury. Color had been given by the District Attorney to the approach of those concerned in the act by an invalid subpoena for certain documents relating to the charge in the indictment then on file. Thus the case is not that of knowledge acquired through the wrongful act of a stranger, but it must be assumed that the Government planned or at all events ratified the whole performance. Photographs and copies of material papers were made and a new indictment was framed based upon the knowledge thus obtained. The District Court ordered a return of the originals but impounded the photographs and copies. Subpoenas to produce the originals then were served and on the refusal of the plaintiffs in error to produce them the Court made an order that the subpoenas should be complied with, although it had found that all the papers had been seized in violation of the parties' constitutional rights. The refusal to obey this order is the contempt alleged. The Government now, while in form repudiating and condemning the illegal seizure, seeks to maintain its right to avail itself of the knowledge obtained by that means which otherwise it would not have had.

"The proposition could not be presented more nakedly. It is that although of course its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the Government can gain over the object of its pursuit by doing the forbidden act. Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, to be sure, had established that laying the papers directly before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one. In our opinion such is not the law. It reduces the Fourth Amendment to a form of words. 232 U. S. 393, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. The numberous decisions, like Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575, holding that a collateral inquiry into the mode in which evidence has been got will not be allowed when the question is raised for the first time at the trial, are no authority in the present proceeding, as is explained in Weeks v. United States, 232 U. S. 383, 394, 395, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. Whether some of those decisions have gone too far or have given wrong reasons it is unnecessary to inquire; the principle applicable to the present case seems to us plain. It is stated satisfactorily in Flagg v. United States, 233 Fed. 481, 483, 147 C. C. A. 367. In Linn v. United States, 251 Fed. 476, 480, 163 C. C. A. 470, it was thought that a different rule applied to a corporation, on the ground that it was not privileged from producing its books and papers. But the rights of a corporation against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.

"Judgment reversed."


The United States Department of Justice should not be obtaining FISA warrants without proper supporting evidence, and impeachment is a matter for Congress, not the Department of Justice.

What should be investigated – lawfully, of course – is whether there has been abuse of power first in trying to prevent President Trump's election and then in trying to frame him.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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