{"id":1694,"date":"2018-10-30T15:23:50","date_gmt":"2018-10-30T22:23:50","guid":{"rendered":"https:\/\/schoenblog.com\/?p=1694"},"modified":"2018-10-30T15:42:50","modified_gmt":"2018-10-30T22:42:50","slug":"letter-to-inspector-general-horowitz","status":"publish","type":"post","link":"https:\/\/schoenblog.com\/?p=1694","title":{"rendered":"Letter to Inspector General Horowitz"},"content":{"rendered":"
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Dear Inspector General Michael Horowitz:            <\/p>\n\n\n\n

I have written to you previously [a<\/a>] [b<\/a>] regarding your investigation of the actions of the FBI with respect to the search warrant obtained against Hillary Clinton on October 30, 2016.  In the course of my FOIA case before the U.S. District Court of the Central District of California to remove redactions from the search warrant affidavit, I came across several issues that I believe were not fully or properly addressed in your otherwise excellent report on the matter from June of this year.  I am writing you again today to share with you my observations.<\/p>\n\n\n\n

\"\"<\/figure>\n\n\n\n

The IG Report includes a full chapter on the drafting of the search warrant but\nunfortunately does not address the very problematic pretextual nature of the\naffidavit used to obtain the warrant.  IG\nReport, pp. 379-84.  You will recall that\nthe stated purpose of the renewed investigation was to search for three months\nof e-mails from an earlier period that Director Comey believed might contain\nevidence of Clinton\u2019s criminal intent[1]<\/a>\nto violate the law with regard to classified information. IG Report, p. 373.[2]<\/a>  <\/p>\n\n\n\n

However, nowhere in the search warrant application executed by the Supervisory Special Agent is the true design of the warrant \u2013 the missing three months of e-mails from early in Clinton\u2019s tenure \u2013 disclosed.  IG Report, p. 325, n. 178 (\u201cAlthough Comey identified this fact as critical to his assessment of the potential significance of the emails on the Weiner laptop, the information was not included in the October search warrant application for the Weiner laptop.\u201d). The brief probable cause portion of the search warrant affidavit is noticeably directed at something completely different, a \u201cspill\u201d of classified information to unauthorized devices.[3]<\/a>  But, as you will recall from the IG Report, the FBI had already determined that it was not interested in conducting a \u201cspill\u201d investigation.[4]<\/a><\/p>\n\n\n\n

The IG Report is conspicuously silent on the importance of the discrepancy between the alleged purpose of the renewed investigation and the affidavit in support of the search warrant.\u00a0 As a result, the Report misses perhaps the most glaring problem with what transpired in the weeks before the 2016 election \u2013 the lack of probable cause for conducting the actual search authorized by Director Comey. \u00a0James Comey, A Higher Loyalty, p. 193 (\u201cThey told me those might well the missing emails from the start of Clinton\u2019s time at the Department of State. The team said there was no prospect of getting Weiner\u2019s consent to search the rest of the laptop, given the deep legal trouble he was in. \u2018We would like your permission to seek a search warrant.\u2019 Of course, I replied quickly. Go get a warrant.\u201d).[5]<\/a><\/p>\n\n\n\n

Nearly everyone quoted in the IG Report, with the possible exception of the Supervisory Special Agent who executed the affidavit for the search warrant, stated that they did not believe the laptop would contain evidence of any criminal activity.  See IG Report, pp.352-55.[6]<\/a>  Nevertheless, it appears that not one of the individuals dared to inform Director Comey that they lacked probable cause for the search he had authorized.[7]<\/a><\/p>\n\n\n\n

Inexplicably, rather than address the lack of probable cause for the search warrant, the Report actually criticizes the FBI for not moving ahead sooner: \u201cWe found the belief that the Weiner laptop was unlikely to contain significant evidence to be an insufficient justification for neglecting to take action on the Weiner laptop immediately after September 29.\u201d IG Report, p. 327.  This makes absolutely no sense.  Since when is it \u201cunjustified\u201d to decide not to obtain a search warrant to look for non-existent evidence that no one believes is there? The IG\u2019s criticism of the FBI\u2019s inaction assumes that there was probable cause for the search, but it is clear from all of the evidence that there was insufficient probable cause. In the end, the search warrant could only be obtained under the false and misleading pretext that the FBI was conducting a spill operation.<\/p>\n\n\n\n

Further, the IG Report briefly describes the ultimate review of the emails on the Weiner laptop, but fails to mention that absolutely no emails were found from the early three-month time period that Comey and the others believed might be important. Compare IG Report, pp. 388-89; Comey, Higher Loyalty, p. 202 (\u201cThere were indeed thousands of new Clinton emails from the BlackBerry domain, but none from the relevant time period.\u201d). In fact, as anyone with even a limited knowledge of the case would expect, all 13 of the classified email chains that were found on the laptop were duplicates of those already reviewed previously. IG Report, p. 389.<\/p>\n\n\n\n

Perhaps the drafters of the IG Report were not technically proficient enough to ask the crucial question \u2014 when did the FBI agents and technicians reviewing the emails learn that absolutely no emails from the sought-after three-month time frame were on the laptop? No doubt that fact could have been discovered almost immediately, and if it was, then what exactly was the FBI looking for over the course of the ensuing week, while the upcoming election hung in the balance? Or were they simply stalling to cover for the fact that they had made a huge blunder? The IG Report is silent on these very significant questions.<\/p>\n\n\n\n

                                                                        Very\ntruly yours,<\/p>\n\n\n\n

                                                                        E.\nRANDOL SCHOENBERG
<\/p>\n\n\n\n

\n\n\n\n

[1]<\/a> We feel compelled to add here that no one has ever explained what exactly such a hypothetical e-mail would say, why anyone would believe that Secretary Clinton would ever draft such an e-mail, or, most importantly, why the presence of such an e-mail would help prove a violation of 18 U.S.C. \u00a7 793(e) or (f), given all of the other facts developed in this investigation (notably the absence of any transmission or delivery of classified information to unauthorized recipients or the removal of such classified information by third parties). Note that the term \u201cmishandling\u201d appears nowhere in the criminal statutes, and that communicating by e-mail does not \u201cremove\u201d anything.<\/p>\n\n\n\n

[2]<\/a> IG\nReport, p. 373.   \u201cComey\ntold us that the potentially great evidentiary significance of the newly\ndiscovered emails would have made it particularly misleading to stay silent.\nBut we found that the FBI\u2019s basis for believing, as of October 28, that the\ncontents of the Weiner laptop would be significant to the Clinton email\ninvestigation was overestimated. Comey and others stated that they believed the\nWeiner laptop might contain the \u2018missing three months\u2019 of Clinton\u2019s e-mails\nfrom the beginning of her tenure when she used a BlackBerry domain, and that\nthese \u2018golden emails\u2019 would be particularly probative of intent, because they\nwere close in time to when she set up her server. However, at the time of the\nOctober 28 letter, the FBI had limited information about the Blackberry data\nthat was on the laptop. The case agent assigned to the Weiner investigation\nstated only that he saw at least one BlackBerry PIN message between Clinton and\nAbedin. As of October 28, no one with any knowledge of the Midyear\ninvestigation had viewed a single email message, and the Midyear team was\nuncertain they would even be able to establish sufficient probable cause to\nobtain a search warrant.\u201d<\/p>\n\n\n\n

[3]<\/a>  26. Given the information indicating that there are thousands of Abedin\u2019s emails located on the Subject Laptop \u2014 including emails, during and around Abedin\u2019s tenure at the State Department, from Abedin\u2019s @clintonemail.com account as well as a Yahoo! Account appearing to belong to Abedin \u2014 and the regular email correspondence between Abedin and Clinton, there is probable cause to believe that the Subject Laptop contains correspondence between Abedin and Clinton during their time at the State Department. Because it has been determined by relevant original classification authorities that many emails were exchanged between Abedin, using her @clintonemail.com and\/or Yahoo! Accounts, and Clinton that contain 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. The Subject Laptop was never authorized for the storage or transmission of classified or national defense information.<\/p>\n\n\n\n

27. A complete forensic analysis and\nreview of the Subject Laptop will also allow the FBI to determine if there is\nany evidence of computer intrusions into the Subject Laptop, and to determine\nif classified information was accessed by unauthorized users or transferred to\nany other unauthorized systems.<\/p>\n\n\n\n

[4]<\/a> IG\nReport, p. 55 (\u201cthe Midyear team did not seek to obtain every device or the\ncontents of every email account that it had reason to believe a classified\nemail traversed.\u201d); p. 93 (\u201cStrzok further stated that the FBI\u2019s \u2018purpose and\nmission\u2019 was not to pursue \u2018spilled [classified] information to the ends of the\nearth\u2019 and that the task of cleaning up classified spills by State Department\nemployees was referred back to the State Department. He told us that the FBI\u2019s\nfocus was whether there was a \u2018violation of federal law. Prosecutors 1 and 2\nsimilarly told us that the Department was not conducting a spill investigation,\nand that the State Department was the better entity for that role. \u2018At a\ncertain point, you have to decide what\u2019s your criminal investigation, and what\nis like a spill investigation\u2026. [W]e could spend like a decade tracking\nemails\u2026wherever they went.\u2019 The SSA told us that the Midyear team engaged in\nseveral conversations, and the State Department officials expressed concern\nabout the problem and were receptive to resolving it. Generally the witnesses\ntold us that they could not remember anyone within the team arguing that more\nshould have been done to obtain the senior aides\u2019 devices.\u201d); p. 167 (\u201c[T]he\npicture that was fairly clear at that point [was] that Hillary Clinton had used\na private email\u2026to conduct her State Department business. And in the course of\nconduct [of] her State Department business, she discussed classified topics on\neight occasions, dozens of occasions, and there was no indication that we had\nfound that she knew that was improper, unlawful, that someone had said don\u2019t do\nthat, that will violate 18 U.S.C. [the federal criminal code], but that there\nwas no evidence of intent and it\u2019s looking, despite the fact of the prominence\nof it, like an unusual, but in a way fairly typical spill and that there was no\nfricking way that the Department of Justice in a million years was going to\nprosecute that.\u201d); p. 374, n. 187 (\u201cIn his book, Comey stated, with respect to\nthe July declination, that \u2018[n]o fair-minded person with any experience in the\ncounterespionage world (where \u201cspills\u201d of classified information are\ninvestigated and prosecuted) could think this was a case the career prosecutors\nat the Department of Justice might pursue. There was literally zero chance of\nthat.\u2019\u201d).<\/p>\n\n\n\n

[5]<\/a> At\nthis fateful meeting, there appears to have been absolutely no discussion of\nwhether there was probable cause to seek a warrant. Most likely this critical\nomission was because, at the outset of the meeting, Andrew McCabe and his\ncounsel Lisa Page were excluded and removed from the meeting as fall-out from\nan October 24, 2016 Wall Street Journal article raising spurious claims of a\nconflict of interest because McCabe\u2019s wife had once run for state office and\nreceived support from the governor of Virginia Terry McAuliffe, a friend of\nHillary Clinton.<\/p>\n\n\n\n

[6]<\/a> IG\nReport, p. 352-54, report of interviews with lead DOJ prosecutor David Laufman,\nProsecutor 1 and Prosecutor 2:<\/p>\n\n\n\n

We asked Laufman what he meant when\nhe said there was a \u2018low expectation\u2019 that this evidence would alter the\noutcome of the Midyear investigation. Laufman stated:<\/p>\n\n\n\n

\u201c[W]e had seen through our\ninvestigation, the types of emails that Huma Abedin had been party to. And they\nwere just not the kinds of emails that really went to the core issues that were\nunder legal analysis, meaning they had to do with sort of scheduling, and…I\nmean, as important as she is in a personal, confidential assistant manner to\nthe former Secretary, she wasn\u2019t as substantively engaged in, in some matters\nthat would have occasioned access to classified information or dealing with\nclassified issues. So…we had seen quite a bit up to that point. And with\nrespect to her, we hadn\u2019t seen her engaged via email with anybody on the types\nof things that were material to our legal analysis. So, assuming that what was\ngoing to be reviewed from this new dataset was consistent with that, it seemed\nimprobable to us that it was going to, to change anything. And of course as we\nknow now, it was a giant nothing-burger.\u201d<\/p>\n\n\n\n

Prosecutor 1 stated that the\nnotification to Congress \u201cdidn\u2019t make any sense.\u201d Prosecutor 1 told us that\ngiven Abedin\u2019s role and the evidence they had previously reviewed there was\nlittle \u201clikelihood of finding anything of import in there.\u201d Instead of doing a\npublic announcement, Prosecutor 1 stated, \u201cWe should just investigate it and do\nit as quickly as we could.\u201d We asked Prosecutor 1 about the potential presence\nof BlackBerry emails from early in Clinton\u2019s tenure.<\/p>\n\n\n\n

Prosecutor 1 stated that the FBI\nmentioned that \u201cthere could be information that covered that BlackBerry period\nfrom the period at the front end of the tenure,\u201d but added:<\/p>\n\n\n\n

\u201cI felt like a lot of the analysis\nwas based upon what, what could be in there and the opportunity cost of sort of\nmissing out on that. Of course, to me that\u2019s a different analysis than making\nan announcement about it. We didn\u2019t want to be seen to be in favor of forgoing\nthe effort entirely.\u201d<\/p>\n\n\n\n

Prosecutor 1 stated that the FBI\nseemed \u201cvery concerned about transparency with the public\u201d and \u201chad already\nkind of decided what they were going to do\u201d prior to consulting with the\nDepartment.<\/p>\n\n\n\n

Prosecutor 2 told us that the\nDepartment was \u201cshocked\u201d that the FBI was even considering notifying Congress\nabout this development. Prosecutor 2 said that she did not necessarily view the\nWeiner laptop as a significant development in the Midyear investigation.\nProsecutor 2 stated:<\/p>\n\n\n\n

\u201cBecause over the course of this\ninvestigation, we haven\u2019t sought out personal devices of anybody other than\nHillary Clinton. So we haven\u2019t asked, for example, for like Huma\u2019s personal\nlaptops, her personal BlackBerries. We have her state.gov stuff, but that\u2019s\nlike, that of Huma\u2019s is all we\u2019ve searched.<\/p>\n\n\n\n

So, there\u2019s a threshold question in\nmy mind of whether, like, this is even something that needs to be searched. And\nbased on the, the iffyness on that threshold question, and then the likely\nsignificance of this device, it seems totally nuts to me that they would make\nan announcement having no idea what is on this device, having not looked at it.\nAnd in, and in terms of like the impact that this announcement could have.<\/p>\n\n\n\n

And I remember being on the phone\ncall like, how are you, asking like how on earth are you going to word this\nannouncement so it\u2019s accurate and doesn\u2019t, doesn\u2019t like, you know, open a much\nbigger can of worms than is really the significance of this recent finding. I\nmean at this point…we have no idea…. We just know that like some of Huma\u2019s\nemails are in FBI\u2019s custody. Like, of course Huma has other emails. Like, how\nis this a game changer?\u201d<\/p>\n\n\n\n

Prosecutor 2 also told us that she\nbelieved the FBI would not listen to any of the arguments they put forth. She\nstated, \u201c[T]here\u2019s a defeated feeling at this point that like [Strzok] was\ngiven the task of like pretend to DOJ that you\u2019re hearing them out. And he was\ngoing to, you know, humor us by having this conference call, but like that\nnothing we said mattered on that call.\u201d<\/p>\n\n\n\n

[7]<\/a> If\nthere is one as-yet unnoticed undercurrent or subtext in all of the released\ninformation concerning the FBI\u2019s investigation of Secretary Clinton, it is the\napparent unwillingness of the male FBI leadership and agents to heed the\nwarnings of their female colleagues, and the apparent understanding of these\nfemale colleagues that their views would not be followed by the men. See, e.g,\nIG Report, p. 377, (Attorney General Loretta Lynch and Deputy Attorney General\nSally Yates were afraid to speak directly to Comey because he didn\u2019t consult\nwith them) (\u201cWe acknowledge that Comey, Lynch, and Yates faced difficult\nchoices in late October 2016. However, we found it extraordinary that Comey\nassessed that it was best that the FBI Director not speak directly with the\nAttorney General and Deputy Attorney General about how to best navigate this\nmost important decision and mitigate the resulting harms, and that Comey\u2019s\ndecision resulted in the Attorney General and Deputy Attorney General\nconcluding that it would be counterproductive to speak directly with the FBI\nDirector.\u201d); IG Report, p. 340-42 (FBI Deputy Counsel Trisha Anderson and FBI\nAttorney 1 try unsuccessfully to remind Comey and FBI General Counsel Jim Baker\nthat they were about to interfere in the election) (\u201cI gather he [Baker]\nthought she [Anderson] might not raise it. So at our next family discussion\nthat evening, he said let me ask you a contrarian question. You know how do you\nthink about this? And then I think she spoke herself and said, how do you think\nabout the fact that you might be helping elect Donald Trump? And I said, I\ncannot consider that at all.\u201d) (\u201cBaker told us that he asked Anderson if she\nwanted to bring this up with Comey, but Baker stated that \u2018she was reticent\u2019 to\ndo so.\u201d); text message from FBI attorney Lisa Page to FBI agent Peter Strzok on\nOctober 27, 2016 (FBI Attorney Lisa Page tries to remind FBI Agent Lead Peter\nStrzok that they cannot search the laptop without probable cause) (\u201ccompletely\nINFURIATED [ ] with [FBI general counsel] Jim [Baker]…. Please, let\u2019s figure\nout what it is we HAVE first. What if we can\u2019t make out PC [probable cause]?\nThen we have no further investigate step.\u201d).<\/p>\n","protected":false},"excerpt":{"rendered":"

Dear Inspector General Michael Horowitz:            I have written to you previously [a] [b] regarding your investigation of the actions of the FBI with respect to the search warrant obtained against Hillary Clinton on October 30, 2016.  In the course of … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1694","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/posts\/1694","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/schoenblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1694"}],"version-history":[{"count":11,"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/posts\/1694\/revisions"}],"predecessor-version":[{"id":1710,"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/posts\/1694\/revisions\/1710"}],"wp:attachment":[{"href":"https:\/\/schoenblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1694"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/schoenblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1694"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/schoenblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1694"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}