An affidavit used to get a late October search warrant for Anthony Weiner’s laptop in the Hillary Clinton email investigation that shook the presidential race gives no indication that the FBI knew Clinton emails containing classified information were included in the data.
The FBI affidavit, unsealed Tuesday by a federal judge in Manhattan, said the existence of thousands of emails of Clinton aide Huma Abedin, Weiner’s wife, created probable cause to seize the materials because past Abedin-Clinton correspondence had included classified materials.
FBI Director James Comey in July had closed without charges a probe of whether Clinton mishandled classified material by using a private email server while Secretary of State. He threw the presidential race into turmoil on Oct. 28 by announcing that the agency had found possible new evidence, but some experts said the affidavits provided a thin basis for his action.
“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 U.S. District Judge P. Kevin Castel to release the materials.
The FBI and lawyers for Clinton and Abedin had no comment immediately after the materials were unsealed.
Castel released the warrant along with the FBI application, affidavit and return after the Justice Department dropped its objections this week. He redacted the names of Weiner and Abedin, but named them in an order to notify their lawyers.
Federal agents were investigating allegations that ex-Congressman Weiner had engaged in sexting with a young girl this fall when they found the Abedin emails on a laptop they had seized from him.
They applied for a warrant before reviewing them, and it was issued by U.S. Magistrate Kevin Fox on Oct. 30, two days after Comey’s public announcement that he was essentially reopening the probe.
Just days before the presidential election, Comey issued a new statement that the emails turned up no new evidence of improper handling of classified information. Clinton supporters contend his initial statement threw momentum to Republican Donald Trump.
The 13-page FBI affidavit was largely devoted to reciting the history of the Clinton email investigation, including review of emails that Abedin had voluntarily turned over to the State Department and a paragraph devoted to Comey’s July announcement that it was closed.
“In recent months the FBI and the Department of Justice have made public statements concerning the conclusion of the investigation,” it said. “However, as with any case, if new, pertinent information comes to light after an investigation is completed, the FBI will take appropriate investigative steps to determine the significance of that information.”
Abedin has said that she didn’t know some of her emails were preserved on Weiner’s laptop. The affidavit said that because previous investigation had shown Abedin and Clinton communicated “on a daily basis” there was probable cause to believe some of the emails on the laptop involved correspondence with Clinton.
The affidavit then asserted that because previous investigation had also shown some of their emails had classified information “there is also probable cause to believe that the correspondence between them located on the Subject Laptop contains classified information which was produced by and is owned by the U.S. Government.”