Was it legal for the FBI to expand the Weiner email search to target Hillary Clinton’s emails?
The basic question, which Kerr gets to after a bit of background:
Here’s the problem. If the FBI was searching Weiner’s computer, it presumably had a warrant authorizing the search of the computer only for Weiner’s communications with underage girls. If that is correct, going from that narrow search to a broader search of Clinton’s emails raises two potential problems for the FBI.
and then the more detailed issue:
A second issue is whether the FBI was permitted to seize the Abedin emails, which were outside the scope of the warrant, and to use them to reopen the investigation into Clinton’s email server. I think this is the bigger legal issue for the FBI. Most courts have treated this as a matter of the “plain view” exception. If the government is searching a computer, and it comes across files that are outside its warrant but are clear evidence of second unrelated crime, the usual government practice is to take those files and use them to get a second warrant to search the computer for the second crime. That’s what the FBI appears to be doing here. They are getting a second warrant after discovering Abedin’s emails because what was likely a first warrant for Weiner’s emails wouldn’t justify the second and broader search. See, e.g., United States v. Carey, 172 F.3d 1268 (10th Cir. 1999).
All the talk from Friday going forward was about Comey possibly violating the FBI policy on non-interference in elections by releasing information which might affect the outcome of an election within 60 days of that election. Which is a serious charge, as neutrality of Federal Agencies is critical in our democratic Republic.
But a 4th Amendment violation, would, I believe, be a worse problem.
It means they went on an unauthorized fishing expedition. Anathema to a society in which personal privacy is becoming ever more important — as technology makes it less and less likely.
Please go read the entire piece, it’s a quite impressive analysis relayed in easy to read and understand “water-cooler” language.
