Comey Must Answer For His Actions

Every new detail that emerges about James Comey’s actions on the eve of the election make him look worse and worse, if that is still possible. I believe that is at least the third time I have written that statement. Yesterday’s unsealing of the warrant that the FBI received to search Huma Abedin’s emails has been attacked by various legal scholars as not providing any basis that criminal activity had taken place and that the warrant, in fact, never should have been issued.

The highly redacted warrant states that “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.”

Law professor Ken Katkin summarized the warrant this way, saying, “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.” Other legal minds pointed out that the FBI had already concluded that Clinton had never intentionally disclosed classified information and therefore could not recommend prosecution. The fact that these emails may have included classified information, which was purely speculation at the point the warrant was written, would not necessarily change that original conclusion about Clinton’s intent. The fact that the laptop was not authorized to store classified material was not a problem for Clinton, it was a problem for Abedin as this was her computer.

Clinton lawyer David Kendall said the warrant showed 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.”

Legal scholars can agree or disagree whether there was enough probable cause to allow the warrant and we all know that law enforcement is usually give wide, probably overly wide, latitude by judges in these cases. But there is no doubt that the rationale for the warrant was weak. And it doesn’t address another issue that was brought up at the time of Comey’s letter and that is whether the discovery of these emails during an investigation into Weiner violated Abedin’s Fourth Amendment rights. The fact that the FBI “stumbled across” these emails during Weiner’s investigation when the warrants for that investigation were solely focused on Weiner’s sexting shows that their search had broadened beyond the scope of that warrant. Although there is an exception for evidence that is in “plain view” during a search, the fact that they discovered a bunch of emails from Weiner’s wife would not be out of the ordinary and, on its face, gives no indication that a crime has been committed. To the use the mere existence of those emails as a basis for getting a new warrant to search them does not absolve the FBI from possibly violating Abedin’s constitutional rights through the initial Weiner search. That is, of course, unless you assume that any email that Abedin and Clinton exchange with each other indicates a crime. As law professor Orin Kerr said just days after the Comey letter, “The Fourth Amendment plain view standard doesn’t allow a seizure of emails based on a mere we-hope-to-later-determine standard. The government can’t seize the emails just because the Clinton investigation is extra important and any possible evidence is worth considering. Rather, the Fourth Amendment requires the initial look at the emails to generate ‘immediate’ probable cause that they are evidence of a crime first, before their seizure is permitted and used to get a second warrant.”

The warrant indicates that the FBI had already examined the metadata of the Abedin emails and determined that there was correspondence between Clinton and Abedin which is hardly surprising. But, if it was later determined that the discovery of the emails violated Abedin’s constitutional rights as described above, the emails would be useless in any legal case because they were the result of an illegal search. In addition, the metadata would also indicate the time frame of the correspondence. If that matched with the time frame of emails already investigated, it would also indicate that those emails had probably already been examined. To think otherwise would be to essentially be going on a fishing expedition.

But the warrant also makes clear that, besides the analysis of the metadata, no real examination of the emails had taken place, which is what makes Comey’s letter so egregious. Comey described the Abedin emails as “pertinent to the [Clinton] investigation”. In fact, Comey had no idea at the time whether the emails were pertinent or not since they had not been examined. He could have phrased it much more equivocally by saying “they may or may not be pertinent”, but he chose not to do so. In addition, Comey’s letter publicly characterized the information that the FBI then used to get a warrant. It would be pretty bold for any magistrate to deny the FBI’s warrant after Comey went public with the information and characterized the emails as “pertinent”. His statement was, of course, prejudicial to Clinton, but it also prejudiced the granting of the warrant.

The Russian hacking in this election was serious and a grave threat to our security and it needs to be investigated thoroughly. But, once again, Democrats have allowed their eye to be taken off the ball when it comes to Comey. There are tons of unanswered questions when it comes to the FBI during the election campaign and Democrats seem unable or unwilling to pursue the answers. I’m not sure why Democrats have not sent a letter to Comey with questions that need answering already. He will certainly be testifying at some point about the Russian hacking and Democrats should hijack at least part of those hearings to focus on the FBI’s actions during this election. There remain questions about how long the FBI knew about Abedin’s emails before any action was taken. There have been rumors that the FBI knew of the existence of these emails for two or three weeks before Comey’s letter.

Based on those rumors, here’s a theory about what really happened that prompted Comey’s letter. During the investigation of Weiner’s texting, the existence of Abedin’s email became known. That information was passed along to the team assigned to investigate Clinton. Either out of caution of effecting the election or a real belief that these emails would turn up nothing new and would certainly not change the results of the investigation, that team did nothing. The rogue element within the New York FBI also had knowledge of the existence of these emails and, prompted by James Kallstrom and Rudy Giuliani, they essentially blackmailed Comey by saying they will go public if he doesn’t. This prompted Comey’s letter and was also probably responsible for its poor wording. It’s quite possible that the rogue element mischaracterized the nature of the emails to Comey. That rogue element then feeds the media frenzy by leaking that Hillary will be indicted.

Kevin Drum points to a panel by the Institute for the Study of Citizens and Politics that showed Comey’s letter moved the electorate by four percentage points in Trump’s favor. Hillary lost voters to Trump and, more importantly, third parties, while Trump gained support. After Comey’s second letter, the electorate hardly moved at all, despite his letter once again clearing Clinton. Both campaigns have declared that Comey’s letter was the critical inflection point in the election. So here are the questions I have that Comey must answer:

• How long did the FBI know about the existence of Abedin’s emails before your letter?
• What was the FBI doing in that interim period?
• Has there been any investigation of the leaks out of the NY field office?
• Has anyone been disciplined for those leaks?
• Was the NY field office involved in the investigation of Weiner’s sexting?
• Did the NY field office know of the existence of Abedin’s emails?
• Who briefed you on Abedin’s emails?
• Why did you consider Abedin’s emails “pertinent” when you had no knowledge of what was in them?
• If new emails with classified information had been found in those emails, would that have changed anything in your inappropriate July statement absolving Clinton?
• When the FBI discovers an important company or institution has been hacked, do they usually just call that company’s or institution’s IT help desk?
• Does the FBI provide any formal notification via a letter to or a face-to-face meeting with senior executives when they discover a hack?
• If not, why not?
• How do you explain spending thousands of man hours on the Clinton email investigation while only making a few perfunctory phone calls to the DNC to inform them they had been hacked?
• Did you contact the RNC and, if so, how?
• Did you realize that your letter was prejudicing the warrant you were about to ask for?
• Why did you inappropriately comment on the resolution of the email case in your July statement?
• Did you have any concerns that the Abedin’s emails had been obtained illegally? If not, why not?