Restoring transparency and fairness to the FBI investigation of Clinton emails

The New York Times and other national media sources are reporting that late Sunday night, the FBI obtained a search warrant to examine email messages belonging to top Clinton aide Huma Abedin. The messages were stored on a laptop belonging to her estranged husband, Anthony Weiner. The laptop was seized by the agency in connection with an investigation into Weiner’s alleged sexting with a 15-year-old North Carolina girl.

The emails are clearly Abedin’s property, even if they were backed up on her husband’s computer. (If they jointly owned the computer, her ownership would be even clearer.) Under the federal rules of criminal procedure, the owner of property seized under a search warrant must be given a copy of the warrant and an inventory of what was taken. Has she received a copy or an inventory?

According to a statement issued Oct. 31 by Abedin’s lawyer, “the FBI has not contacted us.” Though her lawyer said Abedin “will continue to be, as she always has been, forthcoming and cooperative,” she has been kept completely in the dark over the past month while the FBI has been prowling around in Weiner’s laptop.

Giving Abedin the warrant puts her in the position to exercise important legal rights. If it contains provisions that go beyond the constitutional limits on search warrants, she could even challenge the government’s assertion that the warrant was legal at all. Upon receiving the warrant, Abedin could also choose to share it with the media and the general public. That would bring much-needed transparency to what has so far been a mysterious and troubling government operation brought precipitously to public attention less than two weeks before Election Day.

Following one case to another

In a letter sent to Congress Oct. 28, FBI Director James Comey said the FBI “has learned” of the existence of emails “that may be pertinent” to the closed investigation of Clinton’s use of a personal email server during her tenure as secretary of state. He also said that although “the FBI cannot yet assess whether or not this material may be significant,” he had directed investigators “to review these emails to determine whether they contain classified information.”

The FBI seized the computer on which those emails exist in early October under a search warrant seeking evidence of Weiner’s “sexting” with a minor and reportedly also for child pornography. It has been reported that the FBI downloaded summary information, also called “metadata,” for the entire contents of the laptop. That revealed the presence of Abedin’s emails.

At that point, agents delved deeper into the laptop. They sought to determine the dates of the emails and the identities of the people who sent and received them. They were hoping to identify emails that passed through the private email server used by Clinton while she was secretary of state.

Search warrants need specifics

The Fourth Amendment to the Constitution states that no search warrant can be issued unless it “particularly describes the place to be searched and the things to be seized.” In a 1976 case, the Supreme Court explained that the provision prohibits “general, exploratory rummaging in a person’s belongings and prevents the seizure of one thing under a warrant describing another.”

In addition, federal rules of criminal procedure require officers or agents executing search warrants to “give a copy of the warrant and a receipt for the property taken to the person from whom … the property was taken.” Abedin must get not only the warrant but also an inventory of the emails in question.

Once Abedin receives the warrant, she has several legal options to protect her rights. She could:

1. Challenge its legality, asking for the government to show in open court that it had probable cause, sworn under oath, that any of these emails could be evidence of a federal crime. This is particularly relevant because back in July Comey had announced there was no evidence that Clinton’s use of the private email server was a crime. So why would the mere fact that Abedin had sent or received email linked to that server be probable cause to believe those emails were evidence of a crime?
2. Challenge its scope, arguing the warrant isn’t properly limited to specifically described emails. As documented in my article published last week by the Yale Law Journal, the FBI has a troubling history of abusing search warrant provisions to search vast troves of email messages. So it’s possible – even likely – that the FBI’s warrant is too broad.
3. Challenge the method of execution, demanding the warrant specify legal protections so government investigators will only read the specific messages described in the warrant. Her privacy rights mean government investigators shouldn’t be able to read unrelated emails of hers that happen to be on the laptop.

Time for new guidelines for handling digital data

The method by which the FBI located this information is also questionable. It is almost certain that the warrant authorizing the search of Weiner’s laptop for evidence in the alleged sexting crime did not authorize looking at any emails belonging to Abedin.

The FBI itself has admitted that agents didn’t know the messages were on Weiner’s computer until they began searching it. So it appears as if the FBI agents barged ahead, examining information about Abedin’s messages despite their constitutional obligations.

In 2010 five federal judges reviewed egregious misconduct in a federal search of computer data, and recommended that when a search warrant authorizes downloading a large set of data, the data should be placed under the control of a court-appointed third party. The judges said: “That third party should be prohibited from communicating any information learned during the search other than that covered by the warrant. Once the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation should be allowed to examine only the information covered by the terms of the warrant.”

It seems clear that such a procedure should have been used when the Weiner laptop was initially seized and should be used now in handling Abedin’s email.

By Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State University

This article was originally published on The Conversation. Read the original article.