MANHATTAN (CN) — Newly made public Tuesday afternoon, a search warrant that tipped the election against Hillary Clinton contains little indication why the FBI or a federal magistrate found probable cause to review her emails.
Clinton's attorney, David Kendell of the Washington-based firm Williams & Connolly, said that today's release highlights the "extraordinary impropriety of Director Comey’s October 28 letter, publicized two days before the affidavit, which produced devastating but predictable damage politically and which was both legally unauthorized and factually unnecessary."
"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," Kendall said in a statement. "What does become unassailably clear, however, is that 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 — the affidavit offered no additional evidence to support any different conclusion."
U.S. District Judge Kevin Castel had given the FBI by noon today to disclose the warrant at the prompting of E. Randol Schoenberg, an attorney who otherwise has focused on returning Nazi-looted artworks to their rightful owners. In the wake of Donald Trump’s surprise election victory last month, Schoenberg set his sights on bringing transparency to FBI Director James Comey’s pre-election antics.
After reviewing the 21-page document Tuesday, Schoenberg said that he was "appalled."
"I see nothing at all in the search warrant application that would give rise to probable cause,” the attorney said in an email. “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 Secretary Clinton and her longtime aide Huma Abedin.”
The name of the FBI agent in charge of the investigation has been redacted.
Schoenberg noted that agent, Comey and Judge Fox should face tough questions about "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."
"There’s nothing other than 'we’d like to look at it,' and that’s not the standard for probable cause," Schoenberg said in a phone interview. "They knew there was nothing there. They knew there was likely to be nothing there, but they went ahead with it anyway."
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 sent by her top aide. Abedin's computer fell into law enforcement hands when the FBI opened an investigation into her estranged husband, disgraced politico Anthony Weiner, amid evidence that Weiner had been sexting with an underage girl.
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.
Schoenberg meanwhile filed two lawsuits in the Southern District of New York earlier this month – both seeking to uncover the search warrant signed by U.S. Magistrate Judge Kevin Nathaniel Fox on Oct. 30.
He also demanded the FBI’s supporting materials that convinced the magistrate to grant their request.
After those materials hit the public docket Tuesday, Schoenberg blasted the magistrate for having "rubber-stamped this."
Ken Katkin, a professor at Northern Kentucky University’s Chase College of Law, echoed this sentiment in an interview, saying the search warrant “appears to have been meritless.”
Taking a deep dive into the document, Katkin noted that prosecutors cited two statutes for their review, governing “unauthorized” possession of information and its “loss, theft, or destruction.”
“The warrant application also relies on Executive Order 13526, which is not a criminal statute, and is not relevant to a criminal investigation,” Katkin added.
Comey’s announcement in late October had included the acknowledgement that he had not seen the emails on Abedin’s computer, nor did he know what they contained.
This admission makes the warrant even more questionable for Katkin, who disclosed that he has communicated with his friend Schoenberg on this case.
“The warrant application seems to reflect a belief that any email sent by Hillary Clinton from a private email server is probably evidence of a crime,” Katkin said. “If so, then it must be seen as a partisan political act, rather than a legitimate law enforcement action.”
Perhaps uncharacteristically when it comes to its Clinton investigation, the FBI declined to comment. Judge Fox did not return a request for comment.