National Review, by Andrew C. McCarthy, November 3, 2016:
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. But that advantage is lost when what should be one investigation is divided into two or more. If you are an agent investigating the classified e-mails case, you are not going to make efforts to acquire a computer that might be very relevant to the Clinton Foundation investigation but only marginally tied to the classified-information probe. 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.
Fourth and finally, there is the enervating effect of working on an investigation that agents strongly suspect is not going to result in charges. Even as the agents on the classified-information investigation gradually assembled compelling evidence, they had to know that the president and the Justice Department were very unenthusiastic about the case. President Obama talked the investigation down, going out of his way to say Mrs. Clinton would never do anything to harm national security. Justice Department officials leaked the same message to the press.
Put yourself in the shoes of FBI agents who witness things they’ve never seen before: subjects of the investigation given immunity from prosecution and then allowed to appear as lawyers for other subjects; Justice Department lawyers more accommodating of defense lawyers than of FBI agents; witnesses who lie to the FBI given immunity rather than being arrested and squeezed for cooperation. The agents see the handwriting on the wall that their hard work is going to come to nothing. An agent no doubt asks himself: “Why should I push to acquire this computer? If DOJ wanted me to have it, they’d let me subpoena it; if they wanted to make the case, some of these suspects would already be in cuffs.”
This is an understandable attitude, but it’s not an acceptable one. The FBI is not just the nation’s premier investigative agency; it is also our domestic-security service. Wholly apart from whether a computer contains evidence that can be used to prosecute a case, that computer has become a threat to national security if — as a private device that is not hardened against espionage and operates on networks that are not hardened against espionage — it is likely to contain classified information. Even if no one is indicted, the hacking or dissemination of the intelligence on the computer could damage national security.
The reports of the FBI’s investigation that have been made public indicate that there could be dozens of computers and other communications devices which may be storing classified information, but which the FBI has neither seized nor made plans to try to obtain. If that is true, it is inexplicable. That the Justice Department and senior FBI officials have adopted a theory that undermines prosecution of crimes involving mishandling of intelligence is beside the point.
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?
Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.