The documents, made public Tuesday after a Los Angeles lawyer sued for their release, reinforce the impression that when the bureau revealed less than two weeks before the election that agents were again investigating Clinton, they had no new evidence of actual wrongdoing. The FBI’s revelation upended the presidential campaign, and to this day, Clinton and her supporters say it is at least partly to blame for her surprising loss to Donald Trump.
The documents unsealed Tuesday relate to the warrant the FBI obtained to search a computer belonging to disgraced former congressman Anthony Weiner for information potentially related to the Clinton email case. Weiner is Abedin’s estranged husband, and the FBI had been investigating him over allegations that he exchanged explicit messages with a teenage girl.
In the course of the Weiner investigation, officials have said, agents found messages potentially related to the Clinton probe, which had been closed without charges months earlier. But according to the documents unsealed Tuesday, their discovery was relatively limited.
Looking at just the header information of emails, agents found on Weiner’s device thousands of Abedin emails, including what seemed to be “regular” correspondence with Clinton and some messages that appeared to have been sent while Clinton was secretary of state. Based on that — and because Clinton and Abedin were previously on email chains in which classified information was discussed — they argued to a judge there was probable cause for their search. They had not at the time reviewed the content of any Abedin emails, according to the documents unsealed Tuesday.
The bureau did not act unilaterally. U.S. Magistrate Judge Kevin Nathaniel Fox approved a search warrant in the case. But on Tuesday, representatives for Clinton and some lawyers unaffiliated with her criticized the FBI and its director James B. Comey for stretching the limits of the bureau’s authority.
David E. Kendall, Clinton’s lawyer, said in a statement the affidavit highlighted the “extraordinary impropriety” of Comey revealing that the investigation had resumed, which Kendall alleged “produced devastating but predictable damage politically and which was both legally unauthorized and factually unnecessary.”
“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,” Kendall said. “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.”
Brian Fallon, a former Clinton campaign spokesman, said on Twitter there “was nothing in search warrant filing to controvert Comey’s statements from July and truly establish probable cause of a crime,” and that it was “salt in the wound to see FBI rationale was this flimsy.”
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— Brian Fallon (@brianefallon) December 20, 2016
E. Randol Schoenberg, the lawyer who sued to have the warrant unsealed, said he saw “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 Secretary Clinton and her longtime aide Huma Abedin.”
“I am appalled,” Schoenberg said.
Barry Pollack, a white-collar criminal defense attorney who defended former CIA officer Jeffery Sterling in a case involving the alleged mishandling of classified information, said, “The government was plainly fishing with a large net.”
The FBI and a lawyer for Abedin declined to comment for this story.
To obtain the search warrant, the FBI did not need to meet a high bar. White collar criminal defense attorney Jacob Frenkel said the FBI likely revealed only what was required to establish probable cause, mindful of putting too many details in a document that could become public.
“What the judge looks at are the four corners of the warrant, and as to probable cause, that standard, it does meet the requirements,” Frenkel said.
Edward B. MacMahon. Jr., a white-collar defense attorney who also defended Sterling, said he believed agents seemed to have acted appropriately in obtaining the warrant.
“Look, probable cause is such a low standard,” MacMahon said. “The way I read this is they’re saying they found another computer that may have had additional emails on it, and they wanted to search that computer. That’s completely consistent with what the FBI would want to do in a case like this.”
The agent’s application for a search warrant largely lays out what agents had already found in the case, which Comey had in July declared he was recommending be closed with no charges. The agent wrote that the government had determined 2,115 emails on the Clinton server were classified — 2,028 at the confidential level, 65 at the secret level and 22 at the top secret level, which is the most sensitive.
The agent wrote that 27 email chains containing classified information went through Abedin accounts: Six contained information classified secret at the time it was sent, and 21 were classified confidential. The agent wrote that — given thousands of Abedin emails were found on the computer belonging to Weiner, including some that appeared to have been sent while Clinton was secretary of state — there was probable cause to believe their correspondence contained classified information. The agent also wrote that investigators would analyze whether there had been cyber intrusions of the laptop.
Weiner’s and Abedin’s names are redacted from the newly released documents, but they were confirmed by people familiar with the case.
Comey wrote to Congress on Oct. 28, two days before the FBI obtained the warrant, to announce agents were resuming their work on the Clinton email case. Agents in an “unrelated case,” he wrote, had found emails that “appear to be pertinent to the investigation.” Law enforcement officials, speaking on the condition of anonymity, soon revealed that case was the investigation of Weiner’s alleged sexting with a 15-year-old girl, and on Oct. 30, the FBI obtained the warrant to look more thoroughly at Weiner’s computer for Clinton-related materials.
On Nov. 6, Comey announced that investigators had concluded their review and found no reason to change their earlier conclusion about Clinton. The messages they reviewed, U.S. officials familiar with the case have said, were either personal or duplicative of those found earlier in the investigation
U.S. District Judge P. Kevin Castel unsealed the search warrant in the case and related documents at the request of Schoenberg, a lawyer specializing in art theft cases. Schoenberg sued for the materials’ release, arguing that, because of the questions surrounding the Clinton email investigation and the impact of the FBI’s decision to resume it on the eve of the election, the public deserved to know more.
Government lawyers initially opposed unsealing the warrant but soon dropped their objection. The FBI had already released on its website an extensive summary of its investigative efforts before the case had resumed, as well as dozens of interview summaries with witnesses in the case. Clinton took no position on the release of the warrant.