FBI

What Critics of the FBI's Clinton Investigation Get Right

The examination of Huma Abedin's emails was legally justified, but it could have been faster and quieter.

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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.

NEXT: Forensic Science Is a Mess, and the Justice Department Wants to Keep It That Way

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  1. That timeline makes it look like Comey was more worried about covering his ass than resolving the legal issues raised by the emails.

    He utterly failed at that. If his intent was to save political face to either side of the aisle, that didn’t happen. Both camps rightly conclude he botched the entire investigation. But it’s nice to know so many in power think that they can skirt probable cause so long as a crony has already announced he’s not going to seek punishment for their crimes.

    1. “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.”
      -Jacob

      No, the FBI said they recommended against prosecution because no reasonable prosecutor would bring such a case.

      “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”
      FBI statement

    2. I think Comey fell on a sword for the country. Comey was always reported to be a non-partisan, stand-up, straight shooter….a classic noble lawman…until 2016. Seems unlikely he’d be all about covering his ass.
      Perhaps it went something like this….

      It certainly seemed like he was pressured by the administration and Lynch to not bring charges back in July when it made the most sense. He probably was very conflicted by that….stuck between obeying his bosses and following the law. And he most certainly knows the dirt that the Deep State has on the Clintons and it would be shocking that there isn’t clear indications of pay-to-play. He was probably angry at himself and pissed that Hillary would skate.

      He came out with the “new information” at the moment when it would do the most damage to Hillary, with little regard to his career. He fell on his sword to try to bring down Clinton.

      1. If he was so honourable why not actually tell the truth? Why try to sabotage someone illegitimately when you had legitimate way to totally destroy her?

  2. So, the FBI waited a whole two days after Comey’s letter to seek a warrant and, presumably, they would have finished the review a whole two days earlier if they had acted immediately. Who gives a shit, really? Stop throwing the left bones, they need to come to terms with the fact that Clinton lost because she was a horrible candidate and an even worse person.

    1. Don’t forget she also ran a deplorable campaign.

  3. “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. ”

    I suppose Fallon would make the same argument if they had found Trump’s garage stuffed full of stolen property.

    The whole affair, Clinton’s whole campaign was a disgrace. The woman and her lot should be in prison. Comey should retire and Obama needs to fuck right off.

    1. Obama isnt going to fuck off, is he? I keep seeing little blurbs in the news about how he keeps giving Trump instructions on how to conduct his administration. The man’s narcissism is breathtaking.

      I am waiting for Trump to respond with “I’m here because people are done with you.”

      1. I’m predicting that Obama will be gracing us with a few more last minute surprises before he bows out.
        Each more surprising the last.

        1. “It’s my little way of sticking it to ‘The Man’.”

      2. “I am waiting for Trump to respond with “I’m here because people are done with you.”

        Pay attention on Jan 21. Your wish will be fulfilled.

  4. That timeline makes it look like Comey was more worried about covering his ass than resolving the legal issues raised by the emails.

    I am shocked, shocked.

    1. Yeah, since Comey had let Hillary off the hook for things anyone else would have been prosecuted (and likely jailed) for, of course he wanted to cover his ass as much as possible. But that this was somehow unfair to the unindicted felon is just ridiculous.

    2. Damn you got in first.

  5. “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.”

    This is an assistant FBI director mis-stating probable cause – but remember that probable cause isn’t based on a “reasonable man” standard but on a “reasonable police officer” standard. And we all know that police officers have special skills that allow them to intuit by the way a man nervously scratches his face that there’s almost certainly illegal drugs hidden in the trunk of the car. Or that he’s about to reach for the gun hidden in the waistband of his pants. Get a cop on the stand and question his reasonable suspicion and it turns out they’re all Sherlock Holmes, able to glean the most damning of evidence from the most ethereal of clues.

    1. I watched a court accept that a cop’s ‘sniff test’ of a firearm was sufficient to determine that the gun had been recently fired. I knew for a fact that the gun in question had not been fired in over a year (wasn’t my gun) and had been cleaned and oiled.

      Experts.

      1. well…in all fairness to the court….it would be entirely reasonable for a “sniff test” to determine if its been fired recently. The odor is quite distinctive.

        Problem is that the cop lied under oath.

    2. Worse (or better, depending on one’s POV) is the fact that the Supreme Court has ruled that the police may make ‘reasonable mistake of law’.

      It’s “reasonable mistakes” all the way down!

      1. When ‘the law’ contains so many statutes and provisions that no human can possibly know them and many of them conflict with each other it isnt unreasonable to say that. What is wildly unreasonable is to leave the law in that state and to apply it strictly to the citizenry but hold the cops to a different standard. That is how I see it, but then I haven’t been to law skool.

        1. Simple fix, we must return to a system of lawspeakers. if the law gets too long to be held in memory and recited in full once a year, it is no longer law.

          1. So if we break the lawspeakers’s jaw just before the annual recitation we can have a year of anarchy?

  6. The definition of probable cause, “a fair probability,” is far from mathematically precise

    “Oh, very well. ‘Probable cause’ is henceforth deemed to be ‘a probability of 20 times pi.'”

    1. You forgot the square root of -1.

      1. That’s an imaginary number. We’re dealing with real facts.

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  10. 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.

    Of course, if he had originally said that the evidence showed that Clinton was likely a felon, and recommended taking it to a grand jury, that would have had quite an impact on the election, even after all the Democrats on said grand jury refused to indict.

  11. Even if the emails were duplicates isn’t them being on that specific computer a crime?

    1. why yes…yes it.

    2. You are not supposed to pay attention to that. That is wholly unimportant. At least to the important people.

      What you are supposed to focus on, at least according to the important people, is the manner in which the FBI went about not enforcing the laws that were violated by even more important people.

      Because when it comes to Federal law enforcement, that’s all that really matters – how it all affects the even more important people. At least, that’s what the important people think you should pay attention to. Not, you know, the idea that even more important people are immune to various laws.

      Peasant.

  12. The whole Comey-destroyed-Hillary’s-campaign is idiotic on its face. If Comey wanted to destroy Hillary’s campaign all he had to do was say the FBI found enough evidence for an indictment and punt to the Justice Dept.

    1. Comey was always described as a strict straight-shooter. His actions look like someone trying to mess up Clinton but doing it as legally and professionally as possible.

      1. Struck me as a chickenshit.

        He knew Justice was never, regardless of what he found, going to push it through to an indictment much less a conviction.

        So he needed to do just enough to not appear to be whitewashing, while also never finding enough to make it look bad.

  13. If the files were duplicates of Hillary’s like they said then they contained classified info which would make it illegal for Weiner to have. but thats okay they are all above the laws of the land

  14. Bill Clinton forced everybody’s hand by the visit with the AG on the tarmac. So if the FBI hits back a couple of times, too fucking bad.

  15. RE: What Critics of the FBI’s Clinton Investigation Get Right
    The examination of Huma Abedin’s emails was legally justified, but it could have been faster and quieter.

    The Clintons can do no wrong.
    Why Hillary is being investigated is beyond me.
    She has proven time and again how humble, honest and competent she truly is.
    Her coronation is long over due as the Queen of Amerika.

  16. What? No citing Orin Kerr this time? By mentioning that he voted for Clinton (to show that there is no bias, because, look “he even voted for Clinton”) or his assessment from the perspective of a law professor that was so useful just days ago?

    http://wapo.st/2hzunef

  17. This article, and just about every article about this Comey “scandal” overlooks the fact that Huma Abedin received a grant of immunity from Loretta Lynch’s Justice Department. She wasn’t the only one. I believe there were five, including Clinton’s attorney. No reasonable prosecutor would bring a case because there were no witnesses.

    That said, and the important point is, any grant of immunity would have required that Huma turn over ALL emails in her possession. Technically, finding one on this computer she shared with Weiner would be enough to revoke her immunity. They found some 600,000. Now, since I haven’t seen the grant agreement she signed, I don’t know if it required her to turn over the device (bet that it did) but if it didn’t, they wouldn’t know that they were emails already turned over until they got that warrant. Comey needed to send that letter, as Clinton did violate that law and Huma’s loss of immunity could have changed the outcome of the investigation.

  18. 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.

    I’m wondering… does anybody check whether these standards actually work out statistically? For example, if you take all “preponderance of the evidence” decisions, then about 50% of them should turn out to be true after the fact, otherwise someone is abusing the system.

    1. But the ones that aren’t are more likely to be dropped and therefore not included in statistics.

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  26. “That timeline makes it look like Comey was more worried about covering his ass than resolving the legal issues raised by the emails.”
    An FBI agent more interested in covering his ass than the law and justice? I’m shocked, shocked.

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