This week's release of the affidavit that the FBI used to obtain a warrant for Anthony Weiner's laptop has renewed criticism of the way FBI Director James Comey handled the investigation of Hillary Clinton's email practices as secretary of state. Much of that criticism is misplaced, but some of it is valid, even for those of us who don't share Bill Clinton's dismissive view of "that bogus email deal."
As you may recall (perhaps you thought you only dreamed it), FBI agents were looking into allegations that Weiner, the disgraced former New York congressman, had exchanged sexually explicit messages with a 15-year-old girl when they discovered that his laptop contained thousands of emails between Weiner's wife, Clinton aide Huma Abedin, and her boss from the period when both worked at the State Department. Since the FBI already knew that Clinton and Abedin had used the secretary of state's unsecured, unapproved private server to exchange messages that included classified material, the discovery was clearly relevant to the question of whether Clinton had broken any laws restricting the handling of such information.
"This affidavit relates to a criminal investigation concerning the improper transmission and storage of classified information on unclassified email systems and servers," wrote the FBI agent who applied for the warrant to examine the newly revealed email cache. In his affidavit, he argued that there was probable cause to believe that Weiner's laptop, which "was never authorized for the storage or transmission of classified or national defense information," contained "items illegally possessed in violation of Title 18, United States Code, Section 793(e) and (f)."
The first provision applies to someone who has "unauthorized possession of, access to, or control over" classified information and who "willfully retains" the material or passes it along to "any person not entitled to receive it." The second provision covers someone with authorized access to classified information who "through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust." Both are felonies punishable by up to 10 years in prison.
Some of Clinton's allies argue that the FBI lacked probable cause for a warrant because Comey announced last July that he had decided not to recommend charges against her and anything found on Weiner's computer was unlikely to change that decision. "There was nothing in [the] search warrant filing to controvert Comey's statements from July and truly establish probable cause of a crime," former Clinton campaign spokesman Brian Fallon said on Twitter. But Comey described Clinton's handling of classified material as "extremely careless," a judgment that seems to support a charge under 18 USC 793(f). He said he did not recommend such a charge not because it was legally unsupportable because it would be unfair to prosecute Clinton without evidence that she knowingly broke the law.
The argument that a just prosecution requires evidence of criminal intent is compelling, not only for Clinton but for anyone accused of breaking the law. But such evidence is not required by the statute, so the prospect of finding additional classified material that Clinton handled improperly, even if she did not intend to break the law, would be legally sufficient to support a warrant. Add to that the possibility that Abedin or someone else who participated in the correspondence on her husband's computer violated 18 USC 793, and it clearly was reasonable for the FBI to think there might be evidence of a crime in those emails.
"The standard for probable cause is 'more likely than not,'" Ron Hosko, a former FBI assistant director, told The New York Times. "What's probable cause? Something that makes it more likely [than] not that there is information related to a federal offense and it exists in this location. You're not trying to make the federal case. You're trying to get over a legal threshold, and it is the lowest legal threshold there is."
Hosko misstates the probable cause standard, although it would be better for everyone's privacy if cops and judges followed his definition. He is describing "preponderance of the evidence," the standard of proof used in civil cases. Probable cause is a weaker standard, situated somewhere between reasonable suspicion and preponderance of the evidence. The definition of probable cause, "a fair probability," is far from mathematically precise, but based on what the Supreme Court has said in Fourth Amendment cases it is considerably less demanding than a preponderance of the evidence, which implies a probability of more than 50 percent. Based on what the FBI had previously found in Clinton's email, it does not seem like a stretch to say there was a fair probability that Abedin's correspondence with her would contain mishandled classified information.
Comey's critics are on firmer ground in asking why the FBI did not move more swiftly to obtain the warrant and complete its review of the emails, which ultimately concluded, just two days before the presidential election, that they contained no new evidence that would justify criminal charges. That was more than a week after Comey had revealed the existence of the emails in an October 28 letter to members of Congress—another decision that his critics are right to question. Comey reportedly feared that news of the email trove would leak if he said nothing about it, creating the appearance that he was favoring Clinton by concealing information of potential interest to voters. Instead he was criticized for favoring Donald Trump by revealing the information, which Clinton and her supporters say had a decisive impact on the election.
The FBI could not have simply ignored Abedin's emails, which could have revealed new violations of 18 USC 793. But it could have investigated that possibility more expeditiously and discreetly. Agents seized Weiner's computer in early October and by the middle of the month had informed Comey that it contained Abedin's work-related correspondence. But the FBI did not seek the warrant until October 30, two days after Comey's letter. That timeline makes it look like Comey was more worried about covering his ass than resolving the legal issues raised by the emails.