A newly unsealed FBI affidavit used to get a late October search warrant for Anthony Weiner’s laptop in the Hillary Clinton email investigation gives no indication the agency knew the device contained classified information when an announcement of the renewed probe roiled the presidential race.
The affidavit, released Tuesday by a Manhattan federal judge, said there was probable cause to review the laptop’s thousands of emails of Clinton aide Huma Abedin — some linked to State Department accounts — because past correspondence between Clinton and Abedin, Weiner’s wife, had included classified information.
But Clinton’s lawyer and some legal experts said that was an insufficient basis for FBI Director James Comey to announce on Oct. 28 he was restarting a probe that closed in July without charges into whether Clinton illegally mishandled classified information by using a private server as Secretary of State.
“The affidavit concedes that the FBI had no basis to conclude whether these emails were even pertinent to that closed investigation, were significant, or whether they had, in fact, already been reviewed prior to the closing of the investigation,” said Clinton lawyer David Kendall.
“The heart of the warrant application is nothing more than mere speculation that there is classified information on the laptop,” said Clark Cunningham, a legal ethics and constitutional law professor at Georgia State University Law School.
“I am appalled,” said E. Randol Schoenberg, the Los Angeles lawyer whose lawsuit last week triggered the decision by Manhattan U.S. District Judge P. Kevin Castel to release the materials. The FBI and a lawyer for Abedin had no comment after the materials were unsealed.
Federal agents this fall were investigating allegations that ex-Congressman Weiner engaged in sexting with a young girl when they found Abedin’s emails on a laptop seized from him. A warrant to review them was issued on Oct. 30, just after Comey said he would reopen the probe.
Two days before the election, Comey reported the emails contained no new evidence, but Clinton backers say his earlier announcement improperly violated Justice Department rules restricting statements that may affect an election and had already shifted momentum to Donald Trump.
Castel released the search warrant materials after the Justice Department dropped its objections this week. He redacted the names of Weiner and Abedin, but named them publicly in an order to notify their lawyers.
The 13-page FBI affidavit largely recited the history of the Clinton email investigation, including review of thousands of emails that Abedin had voluntarily turned over — her lawyers have said she didn’t know some were stored on Weiner’s laptop — and the decision to close it in July.
The previous investigation, the affidavit said, had shown that Abedin and Clinton communicated “daily,” with more than 4,000 emails from 2009 to 2013, and included 27 email chains with information classified as confidential, secret or top secret.
The affidavit said the volume of correspondence created probable cause to believe that some of the Abedin emails on the laptop would involve Clinton, and if they did “there is also probable cause to believe that the correspondence between them located on the Subject Laptop contains classified information.”
The language was ambiguous about whether the FBI could even tell from so-called “header information” if any emails with Clinton were actually present and, Kendall noted, failed to note that the FBI had concluded that the past pattern it relied on did not involve criminality.
“As the sole basis for this warrant, the FBI put forward the same evidence the Bureau concluded in July was not sufficient to bring a case,” he said. “The affidavit offered no additional evidence to support any different conclusion.”