Hillary Clinton’s allies blasted the FBI Tuesday after court filings were unsealed showing more details about the law enforcement agency’s basis for renewing its probe into Clinton’s private email set-up and roiling the presidential race just over a week before Election Day.
Clinton’s camp says the FBI had remarkably little evidence to go on when it sought a search warrant on Oct. 30 to look for classified emails on a Dell laptop belonging to Anthony Weiner, the estranged husband of longtime Clinton aide Huma Abedin. The FBI says it discovered Clinton-related emails on the computer after initially seizing the device during a probe over Weiner’s alleged sexually explicit online exchanges with a minor.
The court filings unsealed Tuesday show that the FBI said in an affidavit that the laptop was likely to contain evidence of illegal possession of classified information, apparently by Weiner or Abedin, although neither has been charged with a crime.
“There is probable cause to believe that the Subject Laptop contains evidence, contraband, fruits, and/or other items illegally possessed in violation of 18 U.S.C. § 793 (e) and (f),” an FBI agent wrote, citing felony Espionage Act provisions for illegal possessions of classified information.
However, Clinton’s attorney and many of her allies said Tuesday the paperwork suggests all the FBI knew was that they’d stumbled across more emails like the tens of thousands or more messages they weeded through before announcing in July that they were not close to having the kind of evidence needed to bring a prosecution against her or anyone on her staff.
“Today’s release of the FBI affidavit highlights the extraordinary impropriety of Director Comey’s October 28 letter, publicized two days before the affidavit, which produced devastating but predictable damage politically and which was both legally unauthorized and factually unnecessary,” longtime Clinton lawyer David Kendall said in a statement. “The affidavit concedes that the FBI had no basis to conclude whether these e-mails were even pertinent to that closed investigation, were significant, or whether they had, in fact, already been reviewed prior to the closing of the investigation.”
“What does become unassailably clear, however, is that as the sole basis for this warrant, the FBI put forward the same evidence the Bureau concluded in July was not sufficient to bring a case — the affidavit offered no additional evidence to support any different conclusion,” Kendall said.
Former Clinton campaign spokesman Brian Fallon also expressed outrage at the lack of information the FBI had to indicate that the files on Weiner’s laptop would lead to any change in the agency’s announced findings.
“The unsealed filings regarding Huma’s emails reveals Comey’s intrusion on the election was as utterly unjustified as we suspected at time,” Fallon said on Twitter a few hours after the court filings were released. “There was nothing in search warrant filing to controvert Comey’s statements from July and truly establish probable cause of a crime. On day when new election data freshly suggests decisive impact of Comey letter, it is salt in the wound to see FBI rationale was this flimsy.”
The records suggest Fox may have granted the warrant based exclusively on the FBI’s contention that in the earlier phase of the Clinton email investigation, “many emails” between Clinton and Abedin contained classified information, therefore emails between the pair from that same time period and suddenly discovered on Weiner’s laptop were likely to also contain classified information and be evidence of a crime.
“Given the information that there are thousands of [redacted] emails located on the Subject Laptop — including emails, during and around [redacted] from [redacted] account as well as a [redacted] account appearing to belong to [redacted] — and the regular emails correspondence between [redacted] and Clinton, there is probable cause to believe the subject contains correspondence between [redacted] and Clinton,” wrote the FBI agent, whose named was deleted from the records made public Tuesday.
“Because it has been determined by relevant original classification authorities that many emails were exchanged between [redacted] using [redacted] and/or [redacted] accounts, and Clinton that contained classified information, there is also probable cause to believe that the correspondence between them located on the Subject Laptop contains classified information which was produced by and is owned by the U.S. Government. The Subject Laptop was never authorized for the storage or transmission of classified or national defense information,” the FBI agent added.
A California lawyer who went to court to get the records unsealed, Randol Schoenberg, said he was surprised the FBI didn’t have some suggestion that the emails they wanted to search were more incriminating than those already in their possession.
“My initial reaction was: There’s nothing there. There’s really nothing that would establish probable cause,” Schoenberg, who has been critical in the past of the FBI’s handling of the Clinton email probe, said in an interview. “This was a whole lot of nothing. I was shocked. When they said they got a search warrant, I expected there to be more than nothing. No evidence at all they would find any evidence of a crime, … There’s was no indication they would find anything and they didn’t find anything.”
Other prominent lawyers disagreed, saying the facts laid out by the FBI justified issuing the search warrant.
“To my mind, the affidavit does state sufficient facts to make it reasonable for a federal magistrate to say there’s probable cause,” said Rodney Smolla, dean of the Widener University’s Delaware Law School. “The statute says you’re not allowed to transmit classified information to people who are not authorized. … They see massive amounts of information from the [Clinton] server that has headings on it that makes it appear that information is on Weiner’s laptop. That is to me logical enough to say there’s probable cause.”
“Probable cause is not a free pass for the government, but it’s not that high a threshold. I think most federal judges in this context would have said this is probable cause,” Smolla added.
It is unclear from the record whether the FBI informed Fox that months before the new emails were discovered, FBI Director James Comey publicly dismissed the idea of prosecuting anyone over the classified information allegedly exchanged by Clinton, Abedin and other aides on unsecured systems. One passage in the affidavit does note “public statements” from the FBI and Justice Department about “the conclusion of the investigation.” Several paragraphs in the affidavit are entirely redacted, so it’s hard to say conclusively how much of the story the FBI put forth.
U.S. District Court Judge P. Kevin Castel issued an order Monday that the warrant linked to the Clinton probe and related records be unsealed at noon Tuesday, with limited redactions. The judge acted after E. Randol Schoenberg, a California lawyer who mainly investigates art thefts, filed a lawsuit seeking to force unsealing of the files.
An FBI spokesperson did not respond to a request for comment on the wave of criticism unleashed by the unsealing of the court file.
The newly disclosed court records fueled the existing debate over moves made by the FBI and Comey in the lead-up to the Nov. 8 election, where GOP nominee Donald Trump narrowly defeated Clinton in battleground states her campaign expected to win.
On Oct. 28, Comey sent Congress a letter advising lawmakers that new evidence had emerged in the Clinton probe and steps were being taken to review it. On Nov. 6, two days before the election, Comey sent a follow-up letter, saying the evidence had not changed the FBI’s conclusion announced in July that no prosecution of Clinton was warranted in the case.
In the weeks since Clinton’s unexpected loss, she, her campaign aides and her husband, former President Bill Clinton, have argued that Comey’s pair of letters led to a fall-off in support that cost her the election. Even the election-eve letter effectively clearing her had the effect of stirring up more attention to the email issue and turning off voters on the fence about supporting her, Clinton backers claim.
Justice Department prosecutors initially opposed the unsealing, but they agreed in a sealed submission last week that much of the information could be made public with redactions about an unnamed person, who appears to be Weiner.
Castel said that information in the documents referencing another person should also be deleted due to that person’s “strong privacy interest in keeping his or her identity secret.”
“The judicial determination whether to grant a search warrant, and thus allow the government to enter and search private property, directly affects individuals’ substantive rights,” wrote Castel, an appointee of President George W. Bush. “Documents that a court relies on in making this determination, such as affidavits, directly affect the court’s adjudication of those rights. … The common law presumption of access to the search warrant and related materials sought by this applicant is thus entitled to great weight.”
Prosecutors also asked the judge to delete the names of FBI agents involved in the Clinton email probe, citing their work in national security and counterintelligence investigations. Castel agreed to redact those names “at this stage,” but he called that “a somewhat close question.”
“The government has a strong interest in not compromising the activities of agents working in these sensitive areas,” the judge wrote.
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