MANHATTAN (CN) — With electors set to vote on the next U.S. president, a federal judge ordered the government on Monday to produce the search warrant whose issuance led FBI Director James Comey to announce, just over a week before Election Day, that Hillary Clinton’s emails faced a new investigation.
E. Randol Schoenberg, a famed art-repatriation attorney, had filed two lawsuits this month in the Southern District of New York to learn more about what motivated Comey’s announcement.
Though the FBI had closed its Clinton investigation back in July, Comey announced just 11 days before the Nov. 8 election that the bureau obtained a search warrant to review emails from the candidate’s top aide Huma Abedin.
Comey’s announcement flouted a longstanding tradition in the bureau not to comment on a presidential candidate so close to a national election, and Schoenberg hoped to shine a light on why. Indeed the FBI director has cited the election in explanation of why he kept quiet about signs that Russia was tampering with the election to ensure Donald Trump’s election.
Several former attorneys general and nearly 100 former prosecutors were among those who voiced outrage when Comey notified Congress about the Clinton investigation on Oct. 30.
U.S. District Judge Kevin Castel moved Schoenberg’s case forward quickly at a hearing Dec. 13, and he urged all interested parties to brief him privately on the matter.
A 10-page ruling this morning notes that the government has since dropped its objections to publicizing the document.
"Effectively, [the government] withdraws its opposition to Schoenberg’s application and requests that the court unseal the documents with certain redactions,” Castel wrote. “The court grants in substantial part Schoenberg’s application, as well as the government’s request.”
Redacted versions of the search warrant and supporting documents will become public at noon on Tuesday, after electors determine whether Trump should be inaugurated next month despite having lost the popular vote by a greater margin than any U.S. president in history.
Schoenberg, who had requested in his lawsuit to have the search warrant made public before the electors vote, voiced disappointment about the timing.
“I think it would have been nice in theory that the electors have all the information that they will need, but now it seems they will not,” Schoenberg said in a telephone interview.
Despite his disappointment with the timing, the attorney noted he is “very pleased” that the records will be made public.
“The more sunlight on all of this, the better for everybody,” Schoenberg said in a telephone interview.
Castel’s order reveals does new information about how the warrant was obtained.
It names U.S. Magistrate Judge Kevin Nathaniel Fox as the judge who signed the warrant, which the FBI obtained on Oct. 30. An earlier version of Castel’s order, which has since been corrected, contained a typographical error stating that the bureau obtained the warrant 10 days earlier.
When the warrant is released, redactions will disguise the names of people described in the order as “Subject 1” and “Subject 2,” and also the name of the FBI agent who convinced the magistrate to issue the warrant.
“In addition, the government opposes disclosure of the introductory paragraph of the affidavit that describes the agent’s experience, as well as the names of three law enforcement personnel on the warrant return,” Castel’s order states. “While it is a somewhat close question, this investigation was conducted by special agents who work in the fields of national security and counterintelligence. Information regarding their identities could compromise other investigations.”
Schoenberg noted that the FBI had been compelled to reveal agents’ names in what is known as the Amerithrax case, so named because of a scare in which anthrax-laced letters began appearing in the U.S. mail shortly after the attacks on Sept. 11, 2001.
As in that case, the stakes of Comey’s announcement were also enormous, the attorney added.
“It’s not every day that a failed search warrant changes the outcome of a national election,” he said.
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