When FBI Director James Comey wrote his bombshell letter to Congress
on Friday about newly discovered emails that were potentially “pertinent” to
the investigation into Hillary Clinton’s private email server, agents had not
been able to review any of the material, because the bureau had not yet gotten
a search warrant to read them, three government officials who have been briefed
on the probe told Yahoo News.
At the time Comey wrote the letter, “he had
no idea what was in the content of the emails,” one of the officials said,
referring to recently discovered emails that were found on the laptop of disgraced ex-Rep. Anthony
Weiner, the estranged husband of top Clinton
aide Huma Abedin. Weiner is under investigation for allegedly sending illicit
text messages to a 15-year-old girl.
As of Saturday night, the FBI was still in
talks with the Justice Department about obtaining a warrant that would allow
agency officials to read any of the newly discovered Abedin emails, and
therefore was still in the dark about whether they include any classified
material that the bureau has not already seen.
“We do not have a warrant,” a senior law
enforcement official said. “Discussions are under way [between the FBI and the
Justice Department] as to the best way to move forward.”
That Comey and other senior FBI officials
were not aware of what was in the emails — and whether they contained any
material the FBI had not already obtained — is important because Donald Trump’s campaign and Republicans in
Congress have suggested that the FBI director would not have
written his letter unless he had been made aware of significant new emails that
might justify reopening the investigation into the Clinton server.
But a message that Comey wrote to all FBI
agents Friday seeking to explain his decision to write the controversial letter
strongly hinted that investigators did not not yet have legal authority
establishing “probable cause” to review the content of Abedin’s emails on
Weiner’s electronic devices.
In that message, Comey told agents that he
had only been briefed on Thursday about the matter and that the
“recommendation” of investigators was “with respect to seeking access to emails
that have recently been found in an unrelated case.”
Comey approved the recommendation to seek
judicial access to the material that day, he wrote.
“Because those emails appear to be pertinent
to our investigation, I agreed that we should take appropriate steps to obtain
and review them,” he told agents.
Comey’s letter to Congress has subjected the
FBI director to withering criticism. Top Justice Department officials were
described by a government source as “apoplectic” over the letter. Senior
officials “strongly discouraged” Comey from sending it, telling FBI officials
last week it would violate longstanding department policy against taking
actions in the days before an election that might influence the outcome, a U.S
official familiar with the matter told Yahoo News. “He was acting independently
of the guidance given to him,” said the U.S. official.
Comey insisted in his message to agents that
he felt he had “an obligation” to inform Congress about the new material
because he had previously testified that the bureau’s investigation into the
Clinton email server was completed. He said it would be “misleading to the
American people were we not to supplement the record.” He added, “Given that we
don’t know the significance of this newly discovered collection of emails, I
don’t want to create a misleading impression.”
The decision to send the letter “wasn’t
easy,” said the senior law enforcement official. Comey and top FBI officials
debated what course to take once they learned about the discovery on Weiner’s
laptop – said to include thousands of Abedin’s emails. In the end, the official
said, Comey feared that if he chose to move forward and seek access to the
emails and didn’t immediately alert Congress, the FBI’s efforts would leak to
the media and the director would be accused of concealing information.
“This was the least bad choice,” the senior
official said.
But Comey’s letter to Congress — suggesting
that the FBI might now revisit the Clinton email probe — may have been even
more misleading, some critics charged Saturday.
“This letter is troubling because it is
vaguely worded and leaves so many questions unanswered,” Sen. Patrick Leahy,
the ranking Democrat on the Senate Judiciary Committee, and three other
Democrats on the panel wrote Comey and Attorney General Loretta Lynch.
“It is not clear whether the emails
identified by the FBI are even in the custody of the FBI, whether any of the
emails have already been reviewed, whether Secretary Clinton sent or received
them, or whether they even have any significance to the FBI’s previous
investigation,” the senators wrote.
A Yahoo News review of Abedin’s interview
with FBI agents last April — when the Clinton email probe was in full swing —
shows that the longtime Clinton aide hinted that there might be relevant
material on her husband’s personal devices. But agents do not appear to have
followed up on the clues.
Abedin, who served as Clinton’s deputy chief
of staff and held a top-secret security clearance, disclosed she had access to
four email accounts while working at the State Department.
These accounts, Abedin said, included an
official State Department email account, but also an account on Clinton’s
private email server that Abedin used to communicate with Clinton and her top
aides, as well as a personal Yahoo account. She used both the Clinton email
account and the Yahoo account to “routinely” forward State Department emails
and documents so she could more easily print them, she said. In addition, she
told the agents, she had a separate email account that she had previously used
“to support her husband’s political activities.”
Abedin’s interview — conducted by agents at
the FBI’s Washington field office last April 5 — was the first tip-off that the
longtime Clinton aide might have circulated official State Department material
among her multiple accounts. At one point, agents even confronted Abedin on one
apparently sensitive email about U.S. policy towards Pakistan that had been
forwarded to her State Department account from an aide to the late Richard
Holbrooke, then a special State Department envoy to Afghanistan and Pakistan.
Abedin had forwarded the email to her Yahoo account in order to print it, but
told agents she was “unaware of the classification of the document and stated
that she did not make judgments on the classification of material she received.
Instead, she relied on the sender to make that assessment and to properly make
and transmit the document.”
There is no indication from the eight-page
FBI report on the interview, however, that the agents ever pressed her on what
has now turned into an explosive issue in the final days of the 2016 campaign:
Did Weiner have access to any classified government documents on his laptop and
iPhone — devices that, he apparently used to exchange sexually charged messages
with women he met online, including in one alleged case, an underage teenager
in North Carolina?
The fact that FBI agents failed to follow up
on this shows that the original probe into the Clinton email server was “not
thorough” and was “fatally flawed,” said Joseph DiGenova, a former U.S.
attorney and independent counsel who has been a strong critic of Comey and the
FBI probe. “The first thing they should have done was gotten a sworn affidavit
about all her accounts and devices,” he said, adding that agents should have
immediately attempted to obtain the devices, including Weiner’s.
But it is still far from clear which State
Department emails might be on the devices that Weiner had access to. In a
separate civil lawsuit brought by a conservative group, Judicial Watch, Abedin
gave testimony in June that appeared to differ in some respects from what she
told the FBI. Asked in that case about her email accounts, Abedin told Judicial
Watch lawyers that she rarely used the personal Yahoo account, and that when
she did, she only used it to forward State Department “press clips” so she
could print them.
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