In the dark....

Abedin tells colleagues she's in dark about new email trove

Clinton aide said to be unsure how emails ended up in her husband's laptop, and what their significance could be.

By Josh Gerstein

Longtime Hillary Clinton aide Huma Abedin has told colleagues she was taken aback when she learned that the FBI found her emails on a laptop belonging to her estranged husband Anthony Weiner and doesn't know how the messages got there, a source familiar with Abedin's account told POLITICO Sunday.

Word that Abedin claims to be unaware of the cache of messages came as a U.S. official revealed that the FBI obtained a warrant to examine the emails in greater detail.

The disclosure of an additional trove of emails that FBI Director James Comey says may be relevant to the Clinton email investigation has rocked the final days of the presidential campaign, with Comey coming under withering criticism for disclosing to Congress last week that new work was underway in the Clinton probe as a result of the discovery of the new set of messages.

Late Sunday, already intense heat on Comey from the Clinton campaign and its allies grew even more searing. Senate Minority Leader Harry Reid said Comey "may have broken the law" by engaging in partisan political activity. And former Attorney General Eric Holder became the most prominent figure to join a long list of former prosecutors condemning the FBI director's decision to disclose the new politically sensitive discovery just 11 days before the presidential election.

The newly found emails number in the tens of thousands or more, with at least some pertaining to the period when Abedin worked for the State Department from 2009 to 2013, first as a deputy chief of staff to Secretary of State Clinton's and later as a consultant, a law enforcement source said. Some of the messages could already be among the large set of messages the FBI pieced together from a variety of different devices and sources during the yearlong inquiry into Clinton's private email server, officials said.

Abedin had an account on that server, but there were conflicting news reports about whether the newly found set of messages was from her clintonemail.com account and whether it contained messages exchanged with Clinton. Until the warrant was issued Sunday, legal concerns limited the analysis the FBI could do of the messages.

Sources familiar with the investigation said the laptop was seized early in October as part of an FBI probe into allegations that Weiner, a former congressman, traded sexually-explicit messages with an underage girl.

Despite sharp disagreement with Comey's decision to publicize the discovery of the new set of emails just days before the presidential election, Justice Department officials pressed quickly for the warrant once they learned of the messages and are trying to organize a quick review of the emails, a U.S. official told POLITICO.

However, it seems impossible that a full analysis will be completed by Election Day on Nov. 8 because if potentially classified messages that haven't been found before are located, they will have to be farmed out to various intelligence agencies for classification review. That interagency process often takes months.

While Comey's extensive public comments on the Clinton email investigation have angered many of his current and former Justice Department colleagues, legal experts said they also created awkwardness for prosecutors seeking to draft arguments that would justify a search or seizure warrant for the new batch of Abedin emails.

For months, Comey has been public about his agency's conclusion that the evidence obtained in a almost-year-long investigation into Clinton's private server set-up was not remotely close to what would justify filing criminal charges against the former secretary of state or her advisers.

"As painful as this is for people, this was not a close call," the FBI chief told skeptical Republicans on the House Judiciary Committee last month.

However, to get the warrant, Justice Department lawyers appear to have mounted nearly the opposite argument: that the newly-discovered messages were likely to contain evidence of a crime.

Such warrants are readily granted in many cases, but it's rare for the investigator overseeing a probe to be on record saying—based on a large mountain of evidence recovered from various laptops, servers and thumb drives—that "no reasonable prosecutor" would bring a criminal case.

"It certainly would not help that Comey had gone around saying those things...It would make it harder," said one former top Justice Department official.

The former DOJ official, who spoke on condition of anonymity, said he thought the issue would not be an insurmountable obstacle to getting the warrant because there are no defense lawyers in court when prosecutors ask for permission to do a search.

"It's not an adversarial presentation," the ex-prosecutor said. "You'd have to write around that part, [but] I think a skilled prosecutor could."

Other legal experts raised questions about how prosecutors could meet the "probable cause" standard, regardless of Comey's unusual public statements.

"The big issue to my mind is: in order to seize evidence on the computer, it needs to be just immediately apparent that it's evidence of a crime. It's hard to know how that would be the case here," said former federal computer crimes prosecutor Orin Kerr, now a law professor at George Washington University. "It sounds like the government thinks this information might be relevant and they'd like to take a look at it, but it's not immediately apparent to me that it would be evidence of a crime."

The Constitution prohibits general warrants, requiring that evidence seized be expected to connect to specific crimes. So while the warrant used to seize the devices from Weiner is not public, it almost certainly contained some limitation focused on the probe into the former Congressman's sexting and alleged electronic contact with an underage girl.

Of course, if Abedin gave the FBI permission to search the newly found email cache, that might have made a second warrant unnecessary. However, since the laptop apparently belonged to Weiner, it's unclear whether Abedin's permission would have been legally sufficient unless he also consented to the search.

Speaking to reporters Saturday, Clinton campaign chairman John Podesta stressed that Abedin had been "completely" cooperative with the FBI investigation, but in a TV appearance Sunday Podesta was vague about whether Abedin gave her OK for agents to look at the newly-found emails.

"I don't think she knows anything more than what we've seen in the press to date," Podesta said on CNN's "State of the Union." "I’m sure...if people—proper authorities want to ask her questions, they'll ask her questions, but she's been fully cooperative in this investigation.”

Abedin previously provided emails from two laptops and a BlackBerry to the State Department after it sought any potential federal records in her possession.

Abedin's lawyers did not respond to repeated messages seeking comment for this story. There was no indication whether they've been approached by the FBI or Justice Department.

The effort to delve into the newly-found batch of emails came as Comey faced harsh criticism from lawyers inside and outside the Justice Department.

Senior Justice Department officials strongly advised the FBI chief against sending his letter to Congress last week investigators were assessing new evidence in the Clinton email probe, an official familiar with the discussions told POLITICO. The Justice officials pointed to longstanding policies against taking public investigative steps that could have political impact in the 60 days leading up to an election.

Comey and Attorney General Loretta Lynch did not speak directly about the issue, but her concerns were conveyed to the FBI chief before his letter was sent Friday, said the source, who spoke on condition of anonymity. Despite the disagreement, Justice officials are working with the FBI to move the investigation forward, the source added.

In an op-ed Sunday, two lawyers who formerly served as Justice's No. 2 official, Democrat Jamie Gorelick and Republican Larry Johnson, blasted Comey for undermining American democracy

"We now have real-time, raw-take transparency taken to its illogical limit, a kind of reality TV of federal criminal investigation. Perhaps worst of all, it is happening on the eve of a presidential election. It is antithetical to the interests of justice, putting a thumb on the scale of this election and damaging our democracy," Gorelick and Johnson wrote in the Washington Post.

An FBI spokeswoman did not respond to a request for comment Sunday, but in an email to FBI staff Friday, Comey said he believed Congress and the public should be informed about the discovery, even if its significance remained sketchy.

"In trying to strike that balance, in a brief letter and in the middle of an election season, there is significant risk of being misunderstood, but I wanted you to hear directly from me about it," Comey wrote.

While the Clinton email saga is now as much a political as a legal one, the question of what agents are supposed to do when they encounter digital evidence they weren't looking for remains unsettled, according to legal experts.

The Supreme Court has said when officers find physical evidence of a crime in plain view while they're conducting a court-ordered search or carrying out an arrest, they can seize that evidence. The analogy appears to extend to digital data, but just how to extend it has led to protracted litigation.

As a result, federal prosecutors almost always seek a second warrant when their search for evidence of one kind of crime produces evidence of another.

In one of the most famous recent cases, federal investigators pursuing evidence of illegal steroid use in Major League Baseball obtained grand jury subpoenas and search warrants in 2004 to look for positive drug test results pertaining to 11 suspected players. But after seizing records from testing labs, the feds said they came across evidence that more than 100 athletes had tested positive.

A legal imbroglio ensued with a three-judge federal appeals court panel ruling in favor of the government in 2006, but an 11-judge 9th Circuit court essentially reversed that decision three years later, calling for federal magistrates to be engaged in separating relevant and non-relevant data in electronic searches. When the Justice Department asked the full 9th Circuit to take up the case, the appeals court declined, but revised its opinion to relax the strict requirements for electronic searches.

The seizure of the new cache of Abedin emails would likely be covered by precedent from the New York-based 2nd Circuit. It recently upheld the government's use of data seized from accountant Stavros Ganias in connection with investigation of two of his clients. The first warrant was issued in 2003 and the subsequent one issued in 2006, authorizing agents to look at data on the computer in their possession for three years.

The defendant in the case, Stavros Ganias, challenged the government's right to hang onto to data it never had a legal basis to seize, arguing that investigators should have sorted through the data and returned or erased what wasn't relevant to the first warrant.

In May, the full bench of the 2nd Circuit ruled in favor of the government, but Judge Denny Chin filed an impassioned dissent. "Permitting the Government to keep non‐responsive files merely to strengthen the evidentiary value of responsive files would eviscerate the Fourth Amendment," Chin warned.

Ganias has asked the Supreme Court to take up the case. A response from the Justice Department is due by Monday.

While the case touches on the question of what agents should do with computer evidence they stumble across that pertains to an unrelated investigation, Ganias' lawyer said the key issue in his case is really about how long the government can hold on to evidence that isn't directly related to what they were authorized to look for.

"This case is really focused on the retention, rather than the co-mingling aspect," said former U.S. Attorney for Connecticut Stanley Twardy, who represents the accountant. "It's not unusual for the government to find something in connection with one search warrant that might be relevant to something else....There's not a lot of law on that, but you would usually seek a second warrant just to make sure you have all your ducks in a row."