Update:
The Washington Post reports the F.B.I “has obtained a warrant to search the emails found on a computer used by former Congressman Anthony Weiner that may contain evidence relevant to the investigation into Hillary Clinton’s private email server…”
The Post notes that as of late Saturday the FBI had not yet obtained a warrant:
Why authorities had not yet obtained a warrant also is unclear. The technical process of doing so is easy, though prosecutors would need to demonstrate probable cause to conduct searches beyond what they were authorized to do so in the investigation of Weiner. Some legal analysts suggested that might present some challenges, though it was hard to assess given the lack of information about what agents had seen. Investigators could also get the consent of the owner to search a device or email account — in this case, depending on the precise circumstances — that would presumably be Abedin or Weiner.
The Post adds:
The process, former FBI officials have said, could be cumbersome and drag on after the election — particularly if wholly new emails were found. Investigators would have to read those for potentially relevant information, and, if there were questions about their classification, send them to other agencies for review.
Edited to add: All good and well. This may take weeks or months. In the meantime, and in the very short run (like as in the next nine days) unprecedented, unjustified, perhaps even illegal and irreparable damage may have been done to the election chances of one of the candidates — not by pundits, not by politicians, not by the mean media, but by one of the agencies of our own government.
Original Post:
There are so many aspects to, questions raised by and potentially grave repercussions on the presidential elections surrounding the recent comments by FBI Director James B. Comey on the Clinton email issue that they must boggle the mind of any reasonable observer.
Two respected journalists, Kurt Eichenwald and Dana Milbank, have already spoken strongly on this issue — there are scores of other in-depth analyses.
But now a New York Times article by Richard W. Painter, a professor at the University of Minnesota Law School and chief White House ethics lawyer during the George W. Bush administration, takes us into almost unchartered territory.
Painter reminds us that The F.B.I. is currently investigating the hacking of Americans’ computers by foreign governments and that Russia is a prime suspect.
Then Painter drops the “Imagine if”:
Imagine a possible connection between a candidate for president in the United States and the Russian computer hacking. Imagine the candidate has business dealings in Russia, and has publicly encouraged the Russians to hack the email of his opponent and her associates.
It would not be surprising for the F.B.I. to include this candidate and his campaign staff in its confidential investigation of Russian computer hacking.
But there is where it should stop.
In the case of the Clinton email investigation, however, the F.B.I. may have gone one gigantic step further:
But it would be highly improper, and an abuse of power, for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election. It would be an abuse of power for the director of the F.B.I., absent compelling circumstances, to notify members of Congress from the party opposing the candidate that the candidate or his associates were under investigation. It would be an abuse of power if F.B.I. agents went so far as to obtain a search warrant and raid the candidate’s office tower, hauling out boxes of documents and computers in front of television cameras.
“The F.B.I.’s job is to investigate, not to influence the outcome of an election,” Painter states and adds:
Such acts could also be prohibited under the Hatch Act, which bars the use of an official position to influence an election. That is why the F.B.I. presumably would keep those aspects of an investigation confidential until after the election. The usual penalty for a violation is termination of federal employment.
For that reason, Painter, on Saturday, filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics.
Painter, who has spent much of his career working on government ethics and lawyers’ ethics, “never thought that the F.B.I. could be dragged into a political circus surrounding one of its investigations. Until this week.”
Referring to the now-infamous letter Comey sent to members of Congress, Painter says:
The letter was sent in violation of a longstanding Justice Department policy of not discussing specifics about pending investigations with others, including members of Congress. According to some news reports on Saturday, the letter was sent before the F.B.I. had even obtained the search warrant that it needed to look at the newly discovered emails. And it was sent days before the election, at a time when many Americans are already voting.
Painter reiterates that “an executive branch official acting under pressure from politically motivated members of Congress” is a clear violation of the of the Hatch Act and of government ethics rules on misuse of official positions and that such violations “are of even greater concern when the agency is the F.B.I.”
After criticizing Comey’s public statements this summer expressing his personal opinion about Mrs. Clinton’s actions after having announced that the F.B.I. was concluding its investigation of her email without filing any charges, Painter notes:
But an official doesn’t need to have a specific intent — or desire — to influence an election to be in violation of the Hatch Act or government ethics rules. The rules are violated if it is obvious that the official’s actions could influence the election, there is no other good reason for taking those actions, and the official is acting under pressure from persons who obviously do want to influence the election.
Painter points out that lawyers’ professional conduct rules require prosecutors to avoid excessive publicity that could cause public condemnation “even of people who have been accused of a crime, not to mention people like Mrs. Clinton, who have never been charged with a crime.”
Painter concludes:
This is no trivial matter. We cannot allow F.B.I. or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway. That is an abuse of power. Allowing such a precedent to stand will invite more, and even worse, abuses of power in the future.
Read more here.
