The FBI warrant that shook Hillary Clinton’s 2016 presidential campaign in its final two weeks has been unsealed, and the lawyer who requested it says it offers "nothing at all" to merit the agency's actions leading up to the Nov. 8 election.
The warrant was released in response to a Freedom of Information Act request by Los Angeles lawyer Randy Schoenberg, who wants to determine what probable cause the agency provided to suspect material on disgraced congressman Anthony Weiner’s computer might be incriminating to Clinton. Weiner is the estranged husband of Clinton’s top aide, Huma Abedin. Under the Fourth Amendment, search and seizure can only be granted when proof of probable cause of criminal findings has been documented.
The letter confirms news reports in late October that the FBI had detected “non-content header information” suggesting correspondence with accounts involved in its already-completed investigation of Clinton's private email server. The FBI request concludes there is “probable cause to believe” that the laptop contained “evidence, contraband, fruits and/or items illegally possessed."
Yet the documents show the FBI request was based on the presence of classified information on previous emails chains between Clinton and Abedin and no new evidence on the laptop at issue.
"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" Clinton and Abedin, Schoenberg said in an email to USA TODAY. It remains unknown "why they thought they might find evidence of a crime, why they felt it necessary to inform Congress, and why they even sought this search warrant," he said. "I am appalled." The FBI's Manhattan office did not immediately return a call seeking comment. Schoenberg is a Clinton supporter who donated to her campaign.
Clinton campaign officials echoed Schoenberg's complaints Tuesday. Campaign spokesman Brian Fallon said on Twitter that the "unsealed filings regarding Huma's emails reveals Comey's intrusion on the election was as utterly unjustified as we suspected at time."
The FBI concluded in July that there was no “clear evidence that Secretary Clinton or her colleagues intended to violate laws” and that “no reasonable prosecutor would bring such a case.” Then, two weeks before the election, Comey sent a three-paragraph letter to Congress that said in the course of an unrelated investigation investigators found emails that “appear to be pertinent” to Clinton’s private email server. Comey also wrote that he could not assess whether the material was “significant.”
The letter was so vague that Clinton’s opponents seized on it to shift the narrative from a damaging drumbeat of news stories about Donald Trump, including his past treatment of women. Trump called it “bigger than Watergate” and predicted that the FBI would "right the ship" after previously deciding against criminal charges.
Comey’s investigation was the primary cudgel for Trump and his supporters, who claimed — falsely — that Clinton was guilty of “criminal” activity. His large rallies regularly chanted “Lock her up!” and Clinton’s motorcade was greeted in city after city with angry crowds waving signs.
Abedin’s lawyers have also been requesting permission to review the warrant, which they say their client never saw and hadn’t or even been alerted to, preventing them from responding publicly in the final days of the campaign. Two days before the election, Comey confirmed there was no new information.
At the same time, Comey was in possession of evidence showing Russia was hacking into the Democratic Party apparatus, and Senate Minority Leader Harry Reid, D-Nev., accused him of holding back “explosive” information about Russian interference. The retiring senator said Comey may have violated the Hatch Act, which prohibits “activity directed towards the success or failure” of a candidate.
On Monday, former president Bill Clinton said his wife “fought through everything, and she prevailed against it all.” But she couldn’t endure the combination of the FBI’s interference and Russian meddling. At the end, “we had the Russians and the FBI deal. But she couldn’t prevail against that,” Clinton told reporters in Albany.
Republicans have mocked the Clintons’ contention and said it’s an excuse for some of the strategic mistakes the campaign made.
Yet the election was decided by the smallest of margins in a handful of Rust Belt states. Nate Silver, a leading elections statistician and editor-in-chief of FiveThirtyEight, says “Comey had a large, measurable impact on the race" and that she “would almost certainly be president-elect if the election had been held” the day before the letter. He cited late-deciding voters breaking strongly against her enough to cost her Michigan, Wisconsin and Pennsylvania.
Schoenberg said more information needs to be made public before the matter is put to rest. "The FBI agent’s name has not been disclosed, but I think that it may be appropriate to find out his/her name and determine what the motivations were, since it must have been obvious to the FBI that there was no real probable cause to believe they would find evidence of a crime," he said in a follow-up email. "It was very wrong for Director Comey to give that impression."
Schoenberg is a lawyer who gained notoriety by reclaiming Jewish-owned art seized by the Nazis and former president of the Los Angeles Museum of the Holocaust.