Hillary Clinton’s campaign has spent weeks blasting FBI Director James Comey for telling Congress in a letter just two weeks before the election that the FBI was still investigating the private email server Clinton used as secretary of state.
Now, additional decisions connected with Comey’s choice to send that letter are coming under scrutiny. Records released Tuesday have fired up a new debate over whether the warrant that gave life to the FBI search — the step that would justify Comey’s controversial message to Congress — also broke proper protocol.
On Tuesday, the New York Times published a copy of the warrant application the FBI submitted in order to search the laptop of Huma Abedin, Clinton’s top aide at the State Department. Those emails were discovered in the course of the FBI’s separate investigation into the Anthony Weiner sexting scandal, according to multiple news outlets.
Now that we know what’s behind that warrant, some are arguing it should never have been granted by the federal judge or even requested by the FBI. Getting a warrant requires probable cause. But given how little information the FBI had about the contents of the emails, Comey didn’t have it, several legal experts told the Huffington Post.
If that analysis is right, it should only amplify liberals’ outrage toward the FBI for its months-long investigation of a scandal many of them regard as utter bullshit. It would mean that the degree to which Comey helped Donald Trump was not limited to the FBI’s letter to Congress, but in fact formed a much broader and more alarming pattern.
Why the FBI decided to look at Abedin’s emails
Before jumping to that conclusion, though, we should look at why the FBI itself thought the warrant was a necessary and justified action.
In its 21-page letter to the judge, written two days after his letter to Congress, Comey sought to explain why it was seeking the warrants in the case.
A lot of their reasoning makes sense. The FBI, remember, was looking to see whether Clinton had broken the law through her decision to use a private email server — a decision that violated State Department protocol (though it was similar to how Colin Powell handled his email several years earlier).
Federal investigators already had proof that Clinton did in fact exchange classified information over the server. But the FBI did not find evidence of the kind of intent that would constitute a crime. Nor did they find evidence that a foreign agent had successfully hacked into and stolen information from the server.
This is the context in which the FBI wrote its request for a warrant. In its investigation of Anthony Weiner’s alleged sexting to teenagers, the FBI discovered 4,000 emails exchanged between Clinton and Abedin on a laptop. (Abedin’s name is redacted in the reports, but leaks have made clear that she is their subject.)
In the section of the affidavit outlining the case for probable cause, the FBI notes that Clinton and Abedin were already discovered to have exchanged classified information. It also notes there was regular correspondence between Abedin and Clinton over the time the investigation was scrutinizing. Given those facts, it doesn’t seem implausible that the FBI would consider the emails to be within the scope of their investigation.
What’s not clear is the extent to which the FBI believed that the emails discovered on the laptop were new, or if they knew they were replicas of ones that had already been investigated in its other reviews of Clinton’s records. (The vast majority of the new emails did turn out to be duplicates.)
Either way, though, you can imagine why the FBI was curious for a look. Could an email turn up something in which Clinton admitted to knowing that she was wrongly handling classified emails? Perhaps Abedin sent an email telling Clinton that she was breaking the law?
Below, for instance, is the FBI explaining that the warrant to search the laptop will also allow it to investigate whether or not there was “evidence of computer intrusions into the Subject Laptop.” (Of course, in the end all of these fears would prove unfounded — the FBI would clear Clinton of charges connected to the new emails two days before the election.)
But simply because a probe might turn up some evidence of criminal behavior doesn’t mean it was legally justified. And that’s what Clinton defenders see as so wrong in the warrant.
Why the warrant is now being criticized
To some legal scholars, however, none of this amounts to probable cause. They’ve argued that the FBI did not have grounds to search the laptop — and, as a result, did not have grounds to make the decision that would sink Clinton’s standing in the polls.
Their case mostly relies on the fact that the agents appeared to not have any new reason to believe Clinton had broken the law outside of the fact that she had exchanged emails.
“The warrant application seems to reflect a belief that any email sent by Hillary Clinton from a private email server is probably evidence of a crime,” Ken Katkin, a professor at Salmon P. Chase College of Law, told the Huffington Post.
Other lawyers have concurred. Los Angeles lawyer Randy Schoenberg told USA Today that the FBI had no new evidence of a crime when requesting the warrant. Schoenberg, a Clinton supporter and donor, characterized the warrant request as a fishing expedition:
I see nothing at all in the search warrant application that would give rise to probable cause, nothing that would make anyone suspect that there was anything on the laptop beyond what the FBI had already searched and determined not to be evidence of a crime, nothing to suggest that there would be anything other than routine correspondence between (Clinton and Abedin).
(It remains unknown) Why they thought they might find evidence of a crime, why they felt it necessary to inform Congress, and why they even sought this search warrant.
What Schoenberg and Katkin are saying here is not that there’s no universe in which the FBI’s warrant request would make sense. What they are saying is that Comey didn’t have the enough evidence to renew the search in the Clinton private server — and that his decision to do so anyway demands an alternate explanation.