The FBI never asked Hillary Clinton’s top aides to turn over all the computers and smartphones they used while Clinton was secretary of state, an omission that is now triggering questions from Republican lawmakers.
While the FBI made a concerted effort to obtain all the computers that were used as Clinton’s private server and ultimately asked two of Clinton’s lawyers for laptops used to review her email messages, investigators never requested or demanded all equipment her top staffers used for work purposes during her four years at State, a source familiar with the investigation told POLITICO.
“No one was asked for devices by the FBI,” said the source, who requested anonymity.
The decision left the FBI at least partially dependent on the aides’ attorneys’ decisions about which messages were work-related and therefore might have contained classified information the agents were looking for. Those messages were turned over to State in response to its request last year.
GOP lawmakers say the decision not to demand the aides’ electronics, or even to ask for them, raises doubts about how the FBI and prosecutors handled the probe.
“The more we learn about the FBI’s initial investigation into Secretary Clinton’s unauthorized use of a private email server, the more questions we have about the thoroughness of the investigation and the administration’s conclusion to not prosecute her for mishandling classified information,” House Judiciary Committee Chairman Bob Goodlatte (R-Va.) told POLITICO Tuesday.
Republicans have argued for months that the FBI, federal prosecutors or both, treated witnesses in the Clinton probe with unusual deference. The GOP appears to have stepped up that argument in recent days.
In a letter Monday, Senate Judiciary Committee Chairman Chuck Grassley complained that the FBI appeared to have avoided the use of traditional investigative tools in the Clinton probe.
“If the FBI is denied the ability to gather evidence through compulsory means, Secretary Clinton and her aides have enormous leverage to negotiate extraordinary concessions in exchange for voluntary cooperation,” Grassley wrote. “It is critical for the public to know whether the FBI has requested from the Justice Department vital investigative tools such as grand jury subpoenas and search warrants and whether it has been denied access to them.”
Doubts about the completeness of the FBI email probe were fueled last week when it emerged — via a notice FBI Director James Comey sent to Capitol Hill —that FBI agents conducting a separate investigation had discovered thousands of emails belonging to longtime Clinton aide Huma Abedin on a laptop used by her now-estranged husband, Anthony Weiner.
Some news reports suggested that Abedin failed to turn the laptop over to investigators. In a statement issued by one of her lawyers Monday, Abedin insisted she didn’t know she had any emails stored on Weiner’s computer. However, it appears she was never asked to turn over any devices to anyone.
The only known official requests Abedin and other Clinton aides appear to have received for their own emails from the period were requests the State Department made last year for potential federal records the aides might have in their possession and requests the House Benghazi Committee made for certain Libya-related records around the same time. In neither instance were the aides asked for their computers , smartphones or backup drives.
At an FBI interview in April and in a deposition in a Freedom of Information Act lawsuit in June, Abedin said she turned over to her lawyers all devices she thought might contain State Department-related emails. She does not appear to have been asked what happened to the devices after that.
“I looked for all the devices that may have any of my State Department work on it and … gave them to my attorneys for them to review for all relevant documents. And gave them devices and paper,” Abedin said in the deposition.
Attorneys for former Clinton aides declined to comment for this story.
At congressional hearings where Comey testified about the email probe earlier this year, there was no public discussion of why the FBI or prosecutors did not ask Clinton aides for all devices used while she was secretary or which might contain emails from that time.
However, lawmakers did press Comey about the agreement prosecutors made in order to get the FBI laptops that Clinton lawyers Cheryl Mills and Heather Samuelson used while reviewing more than 60,000 of Clinton’s emails in response to a State Department request for potential federal records in her account.
“Anytime you’re talking about the prospect of subpoenaing a computer from a lawyer, it involves the lawyer’s practice of law, you know you’re getting into a big Megillah,” Comey told the House Judiciary Committee in September.
GOP House members and senators have complained that the Justice Department granted Mills and Samuelson a limited form of immunity in exchange for their provision of the laptops. Republicans have also said the Justice Department unwisely agreed to limit what data it would look at on the computers and to destroy them when the review was complete.
One possibility for why the FBI didn’t ask for all Clinton’s aides’ devices is that investigators were focused mainly on Clinton’s use of the private server. In his public statement in July announcing his recommendation for no charges in connection with the email probe, Comey stressed the meticulousness of the investigation, but framed it in terms of reconstructing Clinton’s use of her email account.
“Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send email on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways,” Comey said. “Piecing all of that back together—to gain as full an understanding as possible of the ways in which personal email was used for government work — has been a painstaking undertaking, requiring thousands of hours of effort.”
It’s also possible the FBI or prosecutors elected not to demand all the Clinton aides’ computers and other electronics because doing so might have triggered a legal battle that could have slowed the probe.
Asked Tuesday why no attempt was made to gather all the Clinton aides’ potentially relevant devices, an FBI spokesperson declined to expand on Comey’s prior remarks, including his House appearance in September where he defended the approach taken toward the two attorneys’ laptops.
“In general, in my experience, you can often do things faster with informal agreements, especially when you’re interacting with lawyers,” Comey said. “The investigative team really wanted to get access to the laptops that were used to sort these emails. Those are lawyers’ laptops. That is a very complicated thing. I think they were able to navigate it pretty well to get us access … [The probe] couldn’t be concluded professionally without doing our best to figure out what was on those laptops. So, getting the laptops was very important to me and to the investigative team.”
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