Legal experts who have reviewed the unsealed FBI search warrant that cost Hillary Clinton the election say it is a pile of legal bullsh*t and that it should never have been granted in the first place.
A mere 11 days before Election Day, FBI Director James Comey announced that the agency had reopened its investigation into Clinton’s emails. At that point, Clinton was ahead in the polls and the FBI hadn’t even managed to get a search warrant. It wasn’t until two days after the announcement that the FBI decided to get a warrant for the laptop they had already seized.
Clinton’s laptop was seized as part of a separate investigation into former Rep. Anthony Weiner. Weiner, who’s wiener happened to be what got him in trouble, was married to Clinton’s aide, Huma Abedin. They seized the computer during an investigation of his most recent sexting scandal. Although Comey would later announce that the nothing incriminating had been found, the damage had already been done.
Brian Fallon, a spokesman for the Clinton campaign, said on Tuesday the unsealed warrant “reveals Comey’s intrusion on the election was as utterly unjustified as we suspected at time.”
As the Huffington Post explains:
The legal experts’ argument against the validity of the subpoena boils down to this: The FBI had already publicly announced that it could not prove Clinton intended to disclose classified information. Without that intent, and without evidence of gross negligence, there was no case. The warrant offers no suggestion that proving those elements of the crime would be made easier by searching new emails.
The essence of the warrant application is merely that the FBI has discovered new emails sent between Clinton and Abedin.
That’s not enough.
Ken Katkin, a professor at Salmon P. Chase College of Law, said the idea that an email is evidence of a crime for no other reason than that it may have somehow involved Hillary Clinton is shocking.
“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,” Katkin said. “If so, then it must be seen as a partisan political act, rather than a legitimate law enforcement action.”
Katkin said the warrant should have never been granted at all. Period.
“This search warrant application appears to have been meritless. The FBI should not have sought it, and the magistrate judge should not have granted it.”
Here, the government never had any knowledge or information that would lead a reasonable person to believe that a crime had been committed. Indeed, FBI Director Comey had already publicly announced this fact over the summer. The warrant application released today sets forth no basis whatsoever to support a belief that Secretary Clinton ever had any *unauthorized* possession of any information, though it cites 18 U.S.C. 793(e) which concerns only such unauthorized possession. The warrant application released today also sets forth no basis whatsoever to support a belief that Secretary Clinton ever permitted any information relating to the national defense to actually be lost, stolen, abstracted, or destroyed, though it cites 18 U.S.C. 793(f) which concerns only such loss, theft, or destruction. The warrant application also relies on Executive Order 13526, which is not a criminal statute, and is not relevant to a criminal investigation. The same is true of 32 C.F.R. Parts 2001 and 2003, also relied on in the warrant application.
Randol Schoenberg, another attorney, said the same thing.
“I see 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,” Schoenberg wrote. “I am appalled,” he added.
Longtime Clinton attorney David E. Kendall said the document makes it clear that the investigators “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 explained.
According to Clark Cunningham, the W. Lee Burge chair in law and ethics at Georgia State University, the “warrant violates” the Fourth Amendment of the Constitution.
“The heart of the warrant application is para 26 on [page] 10, which is nothing more than mere speculation that there is classified info on the laptop,” Cunningham said, “unless probable cause is based on redacted sentences, which seems unlikely.”
The “warrant authorized making complete digital copy of laptop contents,” Cunningham noted. “Where is that digital copy now? Will it be accessible to the Trump administration?”
“The Fourth Amendment requires you to pretty much know that what you’re looking for is there ― not speculation. This is just speculation,” Cunningham said.
Orin Kerr, a law professor at George Washington University, says that it is “unclear” if probable cause was actually established, but pointed out that this still doesn’t deal with the possibility that the search was unconstitutional.
“Importantly, the warrant and its supporting affidavit shed no light on those concerns” of unconstitutionality, Kerr wrote. “Affidavits aren’t legal briefs. They are supposed to establish probable cause for a future search, but they don’t litigate the constitutionality of past searches.”
Andrew Ames, a spokesman for the FBI, said that the agency has no comment on any of the criticisms laid out by legal experts. Likewise, Federal Magistrate Judge Kevin Fox, who signed off on the search warrant, hasn’t provided a statement either.
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