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The Warrant That Rocked The Election Is Legal Garbage, Experts Say

The warrant assumes that the mere existence of emails from or to Hillary Clinton is probable cause that a crime occurred.

21/12/2016 6:25 AM AEDT | Updated 22/12/2016 9:54 AM AEDT

The warrant connected to the FBI search that Hillary Clinton says cost her the election shouldn’t have been granted, legal experts who reviewed the document released on Tuesday told The Huffington Post.

FBI Director James Comey shook up the presidential race 11 days before the election by telling Congress the agency had discovered new evidence in its previously closed investigation into the email habits of Clinton, who was significantly ahead in the polls at the time.

When Comey made the announcement, the bureau did not have a warrant to search a laptop that agents believed might contain evidence of criminal activity. The FBI set out to rectify that two days later, on Oct. 30, when agents applied for a warrant to search the laptop, which was already in the FBI’s possession. The FBI had seized the computer as part of an investigation into former Rep. Anthony Weiner, the estranged husband of Clinton aide Huma Abedin.

The unsealed warrant “reveals Comey’s intrusion on the election was as utterly unjustified as we suspected at time,” Brian Fallon, a Clinton campaign spokesman, said on Twitter Tuesday.

Clinton’s lead in the polls shrank in the wake of Comey’s announcement. Then, just days ahead of election, the FBI announced its search was complete, and it had found no evidence of criminal activity. Clinton officials believe that second announcement damaged her as much as, or more than, the first, by enraging Trump supporters who believed the fix was in.

The legal experts’ argument against the validity of the warrant 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. The idea that the mere existence of emails involving Clinton may be evidence of a crime is startling, said Ken Katkin, a professor at Salmon P. Chase College of Law.

“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.”

The warrant never should have been granted, attorney Randol Schoenberg argued. “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 in an email.

“I am appalled,” he added, noting that the name of the agent in charge had been redacted in the copy of the document publicly released.

Katkin agreed. “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,” he said.    

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.

In the days before the election, Comey informed lawmakers in a letter that the FBI investigators believed they had discovered emails that were “pertinent” to their Clinton investigation, months after Comey had announced that the agency had closed its probe without finding evidence of criminal activity by Clinton. The announcement sent shockwaves through the nation. Some Republicans seized on Comey’s letter, mischaracterizing it as a “reopening” of the case.

Regardless, damage was done by the release of the letter. The Clinton campaign has attributed her loss, in part, to Comey’s letter, arguing that it “helped depress our turnout and also drove away some of our critical support.” Analysis of voter behavior in the final weeks of the campaign does suggest that voters made late moves toward Trump, and the timing of Comey’s letter to Congress helps bolster that argument.

David E. Kendall, a longtime Clinton lawyer, said the FBI search warrant affidavit concedes that 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 told The Washington Post

Clark Cunningham, the W. Lee Burge chair in law and ethics at Georgia State University, said the “warrant violates” the Constitution’s Fourth Amendment.

“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 in an email, “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?”

Orin Kerr, a law professor at George Washington University, said in a Washington Post op-ed that it’s “unclear” if the warrant established probable cause. Regardless, he said, that doesn’t answer the question of whether the federal government violated the Fourth Amendment in its search.

“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.”

Ben Feuer, chairman of the California Appellate Law Group and a former clerk on the U.S. 9th Circuit Court of Appeals, told HuffPost that the argument the agent makes for the search warrant “probably would be enough for a ‘reasonable person’ to conclude the laptop could contain evidence of criminal activity, especially given the high-profile nature of the investigation.”

That’s largely because probable cause is a relatively broad standard, Feuer said. As long as law enforcement can articulate why a search, based on evidence they already have, would likely reveal evidence of a crime, “they are probably going to get a warrant,” Feuer argued. That’s especially the case if the investigation is high-profile or if the target is a public servant, as courts tend to favor evidence-collection in those cases.

Andrew Ames, a spokesman for the FBI, said that the bureau had no comment on the legal experts’ criticisms. 

Federal Magistrate Judge Kevin Fox, who approved the search warrant, didn’t immediately respond to a request for comment.

“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.

This article has been updated to include a comment from Clinton lawyer David E. Kendall.

Clarification: References to “subpoenas” throughout the article have been amended to “warrants” for consistency.

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