Unsealed Clinton Email Warrant Asks Court To Maintain Secrecy Of Investigation James Comey Publicly Announced To Congress

from the in-all-things,-boilerplate dept

The FBI's search warrant for Anthony Weiner's laptop was unsealed and released yesterday. This isn't the warrant the FBI originally used to seize and search the laptop. That one was looking for evidence related to allegations Weiner sexted an underage girl.

This warrant is the second search warrant for the same laptop, related to the discovery of emails to and from Hillary Clinton on it. This discovery during an unrelated search prompted Comey to write a letter to Congress informing it that he was going to be diving back into the Clinton email investigation.

The second dive into emails stored on the laptop by former Clinton aide (and estranged spouse of Anthony Weiner) Huma Abedin resulted in the discovery of nothing the FBI hadn't already seen. Comey apologized for getting everyone hot and bothered by his shouting of "CLASSIFIED!" in a crowded electoral season, but believed his actions were justified because he feared this information would likely leak anyway.

Leaks did abound, but the emails found on the laptop were ones that had already been seen by the FBI during its earlier investigation. Since no charges are being brought against Clinton (or Abedin) for mishandling of classified information, there's likely going to be no Fourth Amendment challenges raised in regards to the evidence the FBI didn't find.

If for some reason there was, I'm sure the FBI would feel the "plain view" exception (or perhaps "inevitable discovery," although plain view is a more accurate description...) would apply to its discovery of possible evidence completely unrelated to the Weiner sexting investigation at hand. As the affidavit explains, the normal process of going through emails for the Weiner investigation resulted in the viewing of email header info pointing to Hillary Clinton's private email server.

Having "segregated" those emails, the FBI applied for a second warrant [PDF] to search the content of those communications for classified material. As we know now, nothing of interest was found. Still, there was only the minimum of probable cause to search the content of these stored emails: that Hillary Clinton's email address appeared in the header info. This small possibility the seized emails may have contained classified information was used to justify a second forensic imaging of the seized laptop.

What's completely ridiculous about the affidavit is the agent's request that the affidavit and warrant be sealed because of the "confidential nature" of the investigation. Never mind the fact that James Comey himself blew past other FBI officials' recommendations and outed the results of the first investigation in a public press conference. Then he did it again with his letter to Congress on October 28 -- two days BEFORE this FBI agent asked for the sealing of documents because the investigation was apparently too "sensitive" to be made public.

It could be the agent prepared this affidavit before Comey decided to go public with his announcement, but the signature and date of October 30th appear directly below this paragraph claiming this information needed to be withheld from the public. And the judge granted it, which is just as much of an absurdity. It's not as though no one was aware of Comey's announcement. It was literally in all the papers. But, hey, law enforcement loves boilerplate and, apparently, magistrates' eyes start glossing over by the time they get to affidavit signature pages, because no one thought this request might sound ridiculous given the circumstances surrounding it.

Filed Under: anthony weiner, doj, emails, fbi, hillary clinton, huma abedin, investigation, james comey, probable cause, secrecy, warrant

James Comey To Congress: About Those Hillary Clinton Emails I Mentioned Last Week? Meh, Forget About It, Nothing To See

from the wtf,-comey? dept

James Comey continues to be playing by his own ridiculous rules. He was playing by his own rules when he publicly announced that no charges would be sought against Hillary Clinton over her emails back in July. He was playing by his own rules a week ago when he revealed in a letter to Congress that new information had come to light, man. And, he continued to play by his own rules in sending a new letter to Congress saying, "Ooops, turns out there was nothing."

Specifically, the letter -- sent to the same heads of various Congressional committees -- said:

I write to supplement my October 28, 2016 letter that notified you the FBI would be taking additional investigative steps with respect to former Secretary of State Clinton's use of a personal email server. Since my letter, the FBI investigative team has been working around the clock to process and review a large volume of emails from a device obtained in connection with an unrelated criminal investigation. During that process, we reviewed all of the communications that were to or from Hillary Clinton while she was Secretary of State.

Based on our review, we have not changed our conclusions that we expressed in July with respect to Secretary Clinton.

I am very grateful to the professionals at the FBI for doing an extraordinary amount of high-quality work in a short period of time.

Of course, because we're a day out from the election, and everyone wants to see this whole thing through stupid partisan eyes, you have Trump supporters who freaked out over the July announcement, but were thrilled by the October announcement, suddenly pissed off at this latest announcement. A key claim repeated a bunch of times is: "it's not possible the FBI could have gone through 650,000 emails in a week." This ridiculous line of thinking was kicked off by former NYPD Police Commissioner (and convicted felon) Bernard Kerik in a now deleted tweet: Which, of course, is laughably clueless. First of all, there are at least some questions as to whether or not there were actually 650,000 Clinton emails in the bunch, but to do a basic analysis of even that large a group of emails isn't that hard. As some dude named Ed Snowden explained: The key thing here: the crux of the investigation is if any of the emails found via Anthony Weiner/Huma Abedin's devices were different from the ones that the FBI already had from Clinton's server. Doing a basic diff isn't that difficult, as Snowden noted. So, as for Kerik's ridiculous claim, Americans may not be stupid, but it certainly appears that the former NYPD police commissioner is kinda ignorant of how computers work.

That said, going back to the original point: James Comey is and has been ridiculous throughout this process. I know that supporters of both Clinton and Trump have done their flip-flops on whether or not Comey was good or bad based on the July and October announcements, but it should be pretty clear that he was ridiculous throughout this entire process and handled nearly every aspect of it poorly. Even some diehard Trump supporters found the latest move to be dumbfounding. Here's former Congressional Rep. Joe Walsh -- who just a few weeks ago talked about taking up arms if Trump lost -- admitting that Comey's actions are head scratching: So, perhaps -- in the heat of this crazy election that has people screaming at each other -- this is finally an issue that everyone can come together and agree on: James Comey is a terrible FBI director.

Filed Under: anthony weiner, emails, fbi, hillary clinton, huma abedin, investigation, james comey

FBI Boss Blows Past Policies, Guidelines, His Own Staff To Bring Back Clinton Email Investigation

from the marching-to-the-beat-of-his-own-ridiculous-drummer dept

So, months after clearing Hillary Clinton's slate by deciding she was stupid rather than malicious, James Comey has again gone rogue, declaring there's something worth investigating in emails recovered from a sleazy ex-politician's computer. (Thus subverting the norm of recovering emails from a sleazy, CURRENT politician's computer…)

The timing is, of course, suspect. The FBI really isn't supposed to be announcing investigations of presidential candidates this close to Election Day. As Marcy Wheeler points out, there are guidelines Comey appears to be violating.

Jamie Gorelick (who worked with Comey when she was in DOJ) and Larry Thompson (who worked with Comey when Comey was US Attorney and he was Deputy Attorney General, until Comey replaced him) wrote a scathing piece attacking Comey for violating the long-standing prohibition on doing anything in an investigation pertaining to a political candidate in the 60 days leading up to an election.

It's not the law, but it's something. And until Comey decided to merge Weinergate into Emailgate, this guidance has been followed:

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

It would be a bit much to claim Comey wants to see Trump in the White House. But he apparently has no qualms about violating internal DOJ gentlemen's agreements, which should raise questions -- as Wheeler notes -- about what other policies or guidance Comey considers optional.

The reason you can't put this down as a move meant to damage Clinton's campaign is because that narrative already got used up when Comey refused to recommend prosecution for actions most other government employees wouldn't have walked away from. Suffice it to say, the reaction to Comey's latest announcement depicts partisanship at its best/worst.

So of course the Republicans that had been claiming Comey had corruptly fixed the investigation for Hillary immediately started proclaiming his valor and Democrats that had been pointing confidently to his exoneration of Hillary immediately resumed their criticism of his highly unusual statements on this investigation. Make up your minds, people!

While certain voters sort out their love/hate relationship with James Comey, the next question about broken rules applies to the emails themselves. The FBI seized Anthony Weiner's laptop to search for evidence of alleged communications between Weiner and a 15-year-old. In the course of doing that, agents came across emails between Clinton aides and Huma Abedin, Weiner's estranged wife.

Apparently without knowing the content of these emails, Comey went ahead and decided to alert Congress to the new details of the investigation. Oddly, this happened before the FBI even had a warrant to search those emails -- though it received one over the weekend. Even with the warrant in hand, it's not entirely clear the agency has the right to do that under the Fourth Amendment. The laptop's search and seizure isn't at all related to the (supposedly closed) Hillary Clinton email investigation.

Orin Kerr examines the issues thoroughly at the Volokh Conspiracy. As he sees it, the FBI can't legally expand its investigation for several reasons. Court decisions have suppressed evidence in cases where searches have uncovered evidence of other criminal activity not related to the investigation at hand. These emails are clearly unrelated to the messages sent from Weiner that the FBI was looking for.

The FBI may try to avail itself of the "plain view" exception, but this claim would be dubious at best.

The plain view exception does not allow evidence to be seized outside a warrant unless it is “immediately apparent” upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant.

Assuming the FBI hadn't already taken a peek, all that was known about these emails was that they involved a top Clinton aide. There could be no determination at that point that they contained classified or sensitive material. The Fourth Amendment doesn't (or at least shouldn't [stupid courts]) allow communications to be searched first in hopes of justifying the search after coming across some probable cause. The FBI needed to establish that first and it's unclear how it would do it without actually seeing the content -- though the fact that a court granted the warrant raises some questions about why.

Unfortunately, case law is nowhere approaching "settled" on the limits of digital searches. "Plain view" in regards to digital files is much harder to pin down. Some decisions have made it clear the government can't seize devices and look through everything in hopes of finding evidence of other criminal activity. Fishing expeditions are discouraged, but not every court has felt compelled to suppress evidence gathered in this fashion.

However that all shakes out, one thing is clear: James Comey is running the FBI like it's a one-man shop. He's managed to anger other FBI officials with his autonomous decisions and declarations. Marcy Wheeler notes in her post that the DOJ has shown it can't control Comey, and Comey himself -- in his letter to Congress -- suggested that if he didn't come forward with this, someone inside his agency would have leaked the information. So, the DOJ can't control Comey. Comey can't (or won't) control his own people. And Comey will continue to do things his way, no matter what collateral damage he may cause.

Filed Under: 4th amendment, anthony weiner, doj, emails, fbi, hillary clinton, huma abedin, investigation, james comey, warrant

FBI Investigating New Information Regarding Hillary Clinton... Because Of The Anthony Weiner Sexting Investigation

from the never-email dept

Hillary Clinton's use of a private email server (at times kept in her own basement...) has obviously been a big story during this campaign -- and for a variety of obvious, yet stupid, reasons, the discussion has become ridiculously partisan. What people should be able to admit on all sides of the debate is that Clinton's use of a private email server was incredibly stupid and, at the very least, calls into serious question the judgment of whoever told her this was okay. It also, almost certainly, put serious information at risk of being exposed through hacks. But, earlier this year, the FBI came out and said that it didn't actually break the law. There was a bit of the old "high court, low court" to this whole setup, because you could see how someone with much less fame or status would be nailed to the wall by the DOJ if they wanted to put that person away.

Either way, the surprise of today is the new announcement by James Comey that the FBI is investigating some new emails that were apparently discovered in an "unrelated case" on "a device." There were a couple of hours of speculation on this, with gradual denials -- not the Wikileaks investigation, not the Clinton Foundation investigation -- until it was revealed that it was from the investigation into Anthony Weiner's sexting. Law enforcement seized devices belonging to both Weiner and his then wife (they've since filed for divorce), Huma Abedin, who is a close Clinton aide (and who also had an email account on the private Clinton server). Other reports have noted that the emails aren't ones that were withheld from the original investigation, so it's not an issue of withholding info, but could potentially reveal issues about the motivations and setup of the private server.

In political circles this is raising eyebrows, coming just 11 days before the election, in a campaign where Clinton's opponent, Donald Trump, has repeatedly pointed to her use of an email server as a reason that she should be in jail, and even promising to appoint a special prosecutor to go after her for this (which, uh, actually isn't how the President is supposed to use that power, but...). Comey's letter doesn't go into much detail, though reporters have been getting more and more details. The letter was sent to a variety of people in Congress, on key committees, including the heads of the Intelligence, Judiciary, Oversight and Homeland Security committees.

Dear Messrs Chairmen:

In previous congressional testimony, I referred to the fact that the Federal Bureau of Investigations (FBI) had completed its investigation of former Secretary Clinton's personal email server. Due to recent developments, I am writing to supplement my previous testimony.

In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.

Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.

In a perfect world, this kind of story should lead to open discussions on better email technologies, email etiquette, encryption, over-classification and such. Instead, everyone's going to play political hacky sack with this one, with Clinton supporters arguing it's no big deal (though it is) and Trump supporters either feeling vindicated for earlier claims or arguing that the FBI failed to do its job properly before. This campaign has been nothing if not full of surprises.

Filed Under: anthony weiner, classification, emails, fbi, hillary clinton, huma abedin, james comey, security

Breaking: Clinton Gave Staffers Clintonemail.com Addresses Too

from the it's-turtles-all-the-way-down dept

There has been quite a kerfuffle around the apparent fact that Hillary Clinton solely used her personal email account for government business. This piqued my curiosity, especially since I've been playing with a service called Conspire lately.

Conspire is a startup that analyzes your email and then seeks to provide you with an email chain with which to introduce you to the desired person. So, say I wanted to email my current business crush, Marcus Lemonis, Conspire's system found a path with which I could ask for an introduction. In my case, my friend Espree could email her friend Nathan for an introduction to Marcus. Neat. I can definitely see how Conspire could become a useful tool, albeit one that raises some very interesting privacy questions.

So, I looked for Hillary Clinton's now famous hdr22@clintonemail.com email address in Conspire. No luck. Conspire is still growing, so I suppose it makes sense that none of its members have yet to email Hillary. But then I tried just the clintonemail.com domain in the search, and got one hit. Huma Abedin, Hillary's long-time aide, had an email address with the clintonemail.com domain in Conspire's records. Unfortunately, I have no connection path to Ms. Abedin, so I can't ask the system to facilitate an introduction, but it is fascinating. What other Clinton staffers were using email addresses at the clintonemail.com domain? Seems like at least one was. To be fair, Abedin not only was Clinton's deputy chief of staff in the State Department, but she also continued to work for Clinton after Clinton left office. It is possible that she only got the email address after leaving the government, but it certainly raises some serious questions about whether or not other State Department staffers were provided private clintonemail addresses to avoid transparency requirements. In fact, Politico is reporting specifically that Abedin and other staffers used non-government email addresses while in the State Department, which suggests the clintonemail address may have come earlier:

Clinton’s personal aide, Huma Abedin, and her communications adviser, Philippe Reines, regularly used unofficial email accounts for work-related email, former colleagues said.

This also makes me wonder what other new communications mediums our government officials are using. Could world leaders be SnapChatting each other? Or perhaps sending international YO's? Or trolling each other on YikYak? And, if they are, are they complying with records retention laws?

Filed Under: clinton, clintonmail, email, foia, hillary clinton, huma abedin, transparency