One of the reasons FBI director James Comey has received so much criticism over his decision to disclose the agency’s discovery of possible Clinton server emails on Friday is because it seems neither he nor the FBI may really understand what they found. Various reports since Friday’s disclosure have indicated that the emails, which were apparently sent to or from Hillary Clinton aide Huma Abedin, were discovered on a laptop belonging to Abedin’s estranged husband, Anthony Weiner, whose digital devices were being searched for child pornography as part of case that was unrelated to the investigation into whether Clinton or others knowingly sent classified information over a private email server.
What’s new is the Washington Post report that the FBI agents who investigated Clinton’s emails knew about the Weiner trove for weeks, but only informed Comey last week; it remains unclear whether or not there was a good reason for the lack of disclosure. The Wall Street Journal reports that the trove contains around 650,000 emails stretching back years and that metadata on Weiner’s laptop suggests thousands of those emails were sent to or from Clinton’s private server. Apparently it was left to the Weiner investigators to look into and report back on that metadata, which they never did, and it wasn’t until early last week that officials realized no warrant had ever been sought for the Abedin emails. The Journal reports that Andrew McCabe, the bureau’s second-in-command, had been informed in early October that Weiner’s laptop contained emails from the accounts of Abedin, and it was McCabe who moved the investigation along last week. At that point, investigators decided that the trove was potentially pertinent to the email-server probe, and Comey was notified of the discovery. He then decided to pursue the investigation and indicated so in his now extremely controversial letter to several members of Congress.
Since the device on which the FBI found the additional emails belongs to Weiner, and the reason the agency has Weiner’s device is because of an unrelated investigation, the FBI will need either a warrant or Abedin’s permission to go through the emails to see if they are indeed relevant or significant to the closed Clinton probe. The FBI finally obtained that warrant on Sunday, according to NBC News, a move which suggests a judge didn’t think the pursuit of the emails violated the Fourth Amendment.
In addition, an official told Yahoo News over the weekend that Comey nonetheless “had no idea what was in the content of the emails” at the time he wrote the letter about their discovery. The Post adds that while investigators “will be looking at whether the newly uncovered emails contain classified information or other evidence that could help advance the Clinton email probe,” it’s also possible “that the messages could be duplicative of others already recovered elsewhere or that they could be a collection of benign, personal notes.”
Yahoo News also notes that, according to an FBI report on the agency’s interview with Abedin in April, they never pressed her on whether or not Weiner’s devices might contain relevant information. This was after Abedin mentioned that, in addition to the email accounts she sometimes used for State Department communication, she additionally had an email account she used “to support her husband’s political activities.”
On Saturday night, the Post also reported that Abedin has been telling people that she didn’t know how any of her emails could have ended up on Weiner’s computer in the first place, and that when she had agreed to turn over emails to the State Department for federal-records purposes, her lawyers didn’t even search her husband’s computer. As the Daily Beast points out, Abedin even swore under oath earlier this year that all devices she had with State Department work on them had been turned over to her lawyers for their review.
Since Comey’s news of the trove broke, Democratic officials and the Clinton campaign have continued to demand that the FBI turn over everything they know about the emails — which may be next to nothing, at least until the FBI accesses the emails (something the FBI seems only to have started doing over the past few days despite being aware of the emails for almost a month).
CNN also reports that, surprisingly, the FBI and Justice Department have not contacted Abedin’s lawyers in order to obtain permission to search the newly discovered emails (which one Department of Justice veteran told Talking Points Memo could have provided a way for the bureau to quietly review the emails). The overall issue is complicated, CNN asserts, not only because of Weiner’s ownership of the laptop, but also because of spousal-privilege legal protections, which are naturally afforded to Abedin. CNN also had this to say about the investigators on the Weiner case:
[They] stumbled on the Abedin emails while they were reviewing emails and other communications on the computer[,] stopped their work and called in the team of investigators from FBI headquarters who conducted the probe of Clinton’s private email server … The investigators saw enough of the emails to determine that they appeared pertinent to the previously completed investigation and that they may be emails not previously reviewed.
Because they don’t have a warrant specific to Abedin’s emails, officials have not been able to further examine them. Justice Department and FBI officials view Abedin as cooperative with the investigation.
Officials also told CNN they don’t know how many, if any, of the newly discovered emails are relevant to the previous probe, though they do believe “it’s likely the newly recovered trove will include emails that were deleted from the Clinton server before the F.B.I. took possession of it as part of that earlier investigation.” However, the Washington Post reported on Sunday that “officials familiar with the case said the messages number in the thousands and include correspondence of Abedin and Clinton — but it was unclear whether Clinton was the sender of any emails.”
If this all still seems like a complete mess, some two days after Comey’s disclosure, plenty of others have noticed that as well. A variety of former Justice Department officials have strongly rebuked Comey over the timing of, and rationale for, his announcement, which also violated Department of Justice policy. In addition, Politico reveals that the Clinton campaign is now actively painting the besieged FBI director as a Republican partisan who is attempting to throw the election, hoping the framing will rally Clinton’s base. Senate Minority Leader Harry Reid also fired off a letter to Comey on Sunday suggesting the FBI director may have violated the Hatch Act, which prohibits most members of the executive branch from engaging in political activity.
No matter what, it seems clear that the losers of this story will be Comey and the FBI, an outcome the director may have been hoping to avoid by alerting Congress on Friday.
As far as what’s next, the New York Times explains that it’s not really clear how much more information will be available, when, or from whom:
The review [of the new email trove] will be conducted by the same Washington-based F.B.I. agents who led the investigation into Mrs. Clinton’s emails. F.B.I. agents are all but certain that it will not be completed by Election Day, and believe it will take at least several weeks.
Neither Justice Department officials nor F.B.I. agents say they know what to expect from Mr. Comey over the coming days. Normally, investigations are conducted secretly, but Mr. Comey’s public remarks have opened him up to demands from both campaigns that he make as much information public as possible as soon as it is available.
Buckle up until election day.
This post was updated to reflect the report that a warrant was obtained to search the email trove, and to include Harry Reid’s letter and a link to Orin Kerr’s commentary about the Fourth Amendment.
