Comey under fire again over Clinton emails

Story highlights

  • Clinton lawyer argues new documents prove Comey's intervention was 'legally unauthorized'
  • Toobin: 'I don't really think there is anything so outrageous about the FBI looking at these emails'

(CNN)James Comey is back under fire.

The FBI director is facing renewed criticism after a judge ordered unsealed the warrant used to justify the bureau's review of emails between Hillary Clinton and Huma Abedin. That review, which Comey revealed in the final weeks of the presidential race, shook the contest and revived the debate over the former secretary of state's use of a private email server during her time in office.
The affidavit in support of the warrant shows agents identified thousands of emails on disgraced former congressman Anthony Weiner's laptop that appeared to show "regular email correspondence" between Clinton and Abedin. Given that the pair had previously been on email chains in which classified information was discussed, there was probable cause to justify the search of the newly discovered correspondence, the affidavit argued.
A new search would allow the FBI to work out whether there had been any outside "intrusions" into the laptop and to "determine if classified information was accessed by unauthorized users or transferred to any unauthorized persons," the affidavit read.
But Clinton's lawyer David Kendall said in a statement that the documents prove that Comey's intervention which produced "devastating but predictable damage politically" was "legally unauthorized and factually unnecessary."
"The affidavit concedes that the FBI had no basis to conclude whether these e- mails were even pertinent to that closed investigation, were significant, or whether they had, in fact, already been reviewed prior to the closing of the investigation."
"What does become unassailably clear, however, is that as the sole basis for this warrant, the FBI put forward the same evidence the Bureau concluded in July was not sufficient to bring a case—the affidavit offered no additional evidence to support any different conclusion."
Clinton's former spokesman Brian Fallon also took Comey to task, saying on Twitter that the documents prove the grounds for searching the emails was "flimsy" and rubbed salt in the wound of her defeat.
"The unsealed filings regarding Huma's emails reveal Comey's intrusion on the election was as utterly unjustified as we suspected at time," Fallon wrote on Twitter. "There was nothing in search warrant filing to controvert Comey's statements from July and truly establish probable cause of a crime."
The FBI declined to comment.
CNN senior legal analyst Jeffrey Toobin, however, said the FBI's request for a warrant was "vaguely legit."
The pertinent question, though, did not center on the warrant itself but on Comey's decision to go public with the new search before the election, Toobin said.
"I don't really think there is anything so outrageous about the FBI looking at these emails," Toobin said on CNN's "New Day."
The only way that the Bureau could know that there was nothing incriminating in the emails between Clinton and her longtime assistant was by looking at them, he said, noting that the affidavit did not appear to contain anything inappropriate on the part of the FBI.
But Toobin added: "Why did James Comey feel compelled to release the information that they were looking into these emails right before the election?"
"That remains bizarre, inappropriate and that is the heart of the controversy."
Generally, the FBI seeks to avoid taking any action that would interfere in the political process shortly before an election.
Eleven days before the 2016 presidential election, Comey announced that the FBI discovered emails possibly "pertinent" to the Clinton email server probe "in connection with an unrelated case." That case was New York prosecutors' separate investigation into allegations that Weiner -- who is separated from Abedin -- had allegedly sexted with an underage girl.
The affidavit in support of the warrant makes clear that the FBI argued there was further probable cause to search Weiner's hard drive in light of the fact that Abedin and Clinton previously exchanged classified emails.
"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 US Government. The Subject Laptop was never authorized for the storage or transmission of classified or national defense information," an unidentified FBI agent wrote in court papers.
Abedin's lawyers have previously said she did not know the emails were on the Weiner laptop and did not know how they got there.
In the end, the investigators determined the emails were mostly ones they had previously seen and Clinton was ultimately cleared by the FBI two days before the election.
But the Clinton team has argued since the election that Comey's intervention cost her the election. She told donors last month that his letter "stopped our momentum."