A nagging question has been lost amid the tempest over the FBI’s revival of the Clinton e-mails investigation.
As everyone knows, the file has been reopened because of a trove of e-mails found on a laptop shared by top Clinton aide Huma Abedin and her estranged husband, Anthony Weiner.
What we don’t know, however, is:
Why has the FBI only recently learned about a computer used by Ms. Abedin?
Remember, Abedin is said to have cooperated in the Clinton e-mails investigation and sat for a lengthy interview with FBI agents. The agents asked her about her e-mail practices.
Assuming they asked basic questions, as agents are trained to do, they would have methodically itemized the computers and e-mail accounts she used.
Yet, the Abedin/Weiner computer, which is said to contain 650,000 e-mails (an unknown number of which are relevant to the Clinton investigation), was not acquired by the bureau in connection with the Clinton investigation.
It was seized in an unrelated investigation of Weiner, reportedly involving his alleged “sexting” with a teenage minor.
Why did the FBI agents on the Clinton e-mails investigation fail to acquire and search this computer months earlier? The question becomes more pressing in light of the Washington Examiner’s report that the FBI failed to ask not only Abedin but other Clinton aides to surrender their computers, smartphones, or other communications devices.
Now, there could be a good explanation, at least in connection with some Clinton aides. If, after a reasonably thorough investigation, the FBI had found no indication that potentially classified information was transmitted or stored on a particular device, there’d be no need to seize it.
Let’s say X is a Clinton staffer. Let’s also say the FBI finds that X appears only to have used her government e-mail account for official business; that X did not have an account on the clintonemail.com domain; that whenever Clinton or other government officials e-mailed X, they addressed the e-mail to X’s state.gov account; and that X was cooperative when interviewed and convincingly said she never used her private e-mail for government business.
Under those circumstances, it would be reasonable not to ask for the surrender of X’s private cellphone or computers. Let’s now consider, though, the case we actually have.
Several Clinton staffers appear to have sent and received e-mails about government business on private devices and private e-mail accounts.
A number of those e-mail exchanges involved classified intelligence. It seems like a no-brainer to me that these devices should have been seized and searched. Why was this not done?
There are at least four reasons, none of them good.
First, the Obama Justice Department under Loretta Lynch denied the FBI’s Clinton e-mails investigators access to the grand jury.
The grand jury’s power to compel production of evidence and testimony is the source of much of the FBI’s power to convince people to be cooperative. Defanged by DOJ, investigators were forced to negotiate and cajole when they should have been able to demand.
That makes it much harder to investigate. It undoubtedly drummed into the agents the message that they should not press too many requests for the voluntary surrender of items the owners would not want to part with — and no one wants to give up personal laptops and smartphones.
If a request made by an agent was denied, the agent could have no confidence that the Justice Department would back him.
Second, the Good Ship Clinton overflows with lawyers. It is also very close to the Obama Justice Department (many Obama-administration lawyers were once Clinton-administration lawyers).
Lawyers know that the FBI worries about being accused of violating attorney-client privileged communications. They also know that the Obama Justice Department is indulgent of extravagant claims about what the attorney-client privilege shields from disclosure.
Lawyers’ devices are thus a big hassle for agents, and they no doubt shy away from asking for them unless it’s patently necessary (as it was, for example, with the laptops of Cheryl Mills and Heather Samuelson, since those computers were used to store and vet all of Hillary Clinton’s e-mails).
And when you start shying away from seeking access to the computers of important subjects (such as Mills) because you don’t want to deal with lawyer complications, it becomes much easier to rationalize not seeking the devices of other subjects.
Once it is established by habit that obtaining computers is not a priority, you stop asking.
Third, it’s never good to compartmentalize an investigation. In this case, the classified e-mails investigation has apparently been severed from the Clinton Foundation investigation, as if they were completely separate and unrelated.
When obviously related matters are joined together, there is a broader basis to demonstrate probable cause that evidentiary items, such as computers, are relevant and should be seized.
When an investigation is artificially carved up, agents do not see the big picture: Things that ought to be acquired end up falling through the cracks.
It also raises another question: Is the Abedin/Weiner laptop the last one? Or will late discoveries continue to rock Camp Clinton and roil our politics?