One day after the Electoral College officially handed the presidency to Donald Trump, we got the strongest evidence yet that his mandate–assuming he even has one–is irrevocably tainted. On Tuesday afternoon, a federal judge in Manhattan unsealed the search warrant that the FBI obtained to review emails that were possibly related to Hillary Clinton’s private email server. That warrant was obtained after FBI Director James Comey alerted Congress to this discovery–an announcement that, based on all available polling evidence, cost Hillary the Electoral College.
The process was set in motion when Los Angeles attorney E. Randol Schoenberg sued the FBI in order to obtain the warrant for emails from longtime Hillary aide Huma Abedin–emails that we now know the agents had first discovered on October 3. Schoenberg wanted to know what probable cause supposedly justified that warrant. He was forced to do so when the FBI refused to grant a FOIA request for the warrant. On Monday, federal judge Kevin Castel ordered the warrant released.
Read the warrant here. It was redacted to obscure the investigating agents, as well as two of the subjects of the investigation. When Schoenberg saw it, he hit the ceiling. To his mind, this warrant should have never been issued. He issued a burning statement condemning the FBI’s actions on Facebook.
“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 went on to say that he was “appalled” that federal magistrate judge Kevin Fox granted the warrant. Looking at the attached affidavit, it’s hard not to see why. Apparently the agent believed that emails between Hillary and Abedin were evidence in and of themselves of criminal activity. Schoenberg was incredulous.
Since when is this probable cause? pic.twitter.com/R4vymsMMeC
— E Randol Schoenberg (@RandySchoenberg) December 20, 2016
FBI and Judge Fox had to know that there was no probable cause. Why did they do it?
— E Randol Schoenberg (@RandySchoenberg) December 20, 2016
He wasn’t the only one. Legal experts condemned the warrant, and by extension the FBI’s actions, in the strongest possible terms.
Ken Katkin, a professor at Salmon P. Chase College of Law, minced no words when Huffington Post asked him to review the warrant. Katkin said that the warrant application contained no evidence that Hillary willfully mishandled classified information. To Katkin’s mind, if the FBI believed an email exchange between Hillary and Abedin was probable cause, then the warrant was “a partisan political act.” Clark Cunningham of Georgia State University was even more blunt. He believed the warrant was a Fourth Amendment violation, saying that it was based on “mere speculation that there was classified info on the laptop.”
Josh Marshall of Talking Points Memo talked to a former federal prosecutor who has investigated public corruption on a number of occasions. That prosecutor concluded that based on the warrant, the FBI not only had no evidence that Abedin withheld the emails, but didn’t even know if there were any new emails in the first place prior to seeking the warrant. He also could find no evidence that justified such a move so close to the election. He believed that the only reason Comey still has a job is because the thought of Trump appointing his successor is “scary.”
When Seth Abramson, an English professor at the University of New Hampshire and a former public defender, looked at the warrant, he found that it was shot through with “suspicious irregularities.” Abramson was a public defender for six years in New Hampshire and one year in Massachusetts, so he’s used to seeing law enforcement play fast and loose with affidavits.
For one thing, the warrant was issued on October 30–three days after Comey told Congress about the new findings. That led Abramson to wonder–how could the FBI even look at the emails? After all, the agents who found them were investigating former Congressman Anthony Weiner, and they legally couldn’t look at any emails that weren’t between Abedin and Weiner without a warrant. Abramson believed that the agents knew these emails weren’t new at all, but mere copies of emails the FBI already had–something that would have been “immediately obvious” to the FBI forensics unit.
He also believes that the agents were well aware they didn’t need a warrant, since by then Abedin and Weiner were cooperating witnesses; all they would have had to do was ask permission to review the laptop. As it turned out, they never talked to Weiner or Abedin in the 24 days between the time it found the emails and when the agents finally told Comey about them. Indeed, Abedin revealed on Thursday that the FBI never gave her a copy of the warrant–a clear breach of Federal Rules of Criminal Procedure. Ironically, this may have prevented the warrant from being released before the Electoral College convened; Castel had to give Abedin time to review the warrant so she could comment on it.
Additionally, Abramson wondered why the warrant was filed under seal after Comey Congress and the nation about the renewed probe. He thinks there’s only one explanation–the FBI didn’t want anyone to review it before the election. As is now clear, even a cursory review shows this warrant is bogus. The agents also stripped out a number of critical dates that, had they been included, would have told Fox that they had known about those emails for far longer than they claimed. Abramson also wondered why Comey hasn’t tried to find out how two people with close ties to Trump–Rudy Giuliani and Jim Kallstrom–knew about the emails before he did, even though this is a prima facie Hatch Act violation.
Last week, Abramson did what no one in the media has done yet–connect the dots in the timeline leading up to Comey’s letter. When he did so, he concluded that rogue elements in the FBI engaged in a conspiracy to deny Hillary the presidency, using the email investigation as a cover-up–a crime that he called “bigger than Watergate.” To Abramson’s mind, this warrant puts it beyond any doubt that there was “collusion between the FBI…and a political campaign to hijack the election.”
All things considered, it’s hard not to agree. A warrant founded solely on speculation of criminal activity, rather than hard evidence. Strong indications that the FBI was well aware these were not new emails. Two people outside the FBI knowing about a politically explosive investigation before the director did. When you add it up, the only conclusion you can draw is that Hillary was denied the presidency by a criminal act. And this warrant proves it.
(featured image courtesy DonkeyHotey, available under a Creative Commons-BY license)