screen-shot-2016-10-30-at-8-18-27-am

“Glitch!” FBI’s Three Leaked Claims about the Delay in Obtaining a Warrant for Huma’s Email

The other day, the WSJ had a story that included this detail about the gap between the time FBI realized there were Huma Abedin emails on a computer seized in the Anthony Weiner investigation and when they got a warrant to read them.

The FBI had searched the computer while looking for child pornography, people familiar with the matter said, but the warrant they used didn’t give them authority to search for matters related to Mrs. Clinton’s email arrangement at the State Department. Mr. Weiner has denied sending explicit or indecent messages to the minor.

In their initial review of the laptop, the metadata showed many messages, apparently in the thousands, that were either sent to or from the private email server at Mrs. Clinton’s home that had been the focus of so much investigative effort for the FBI. Senior FBI officials decided to let the Weiner investigators proceed with a closer examination of the metadata on the computer, and report back to them.

At a meeting early last week of senior Justice Department and FBI officials, a member of the department’s senior national-security staff asked for an update on the Weiner laptop, the people familiar with the matter said. At that point, officials realized that no one had acted to obtain a warrant, these people said. [my emphasis]

While I and actual experts on Fourth Amendment law had already started asking about the legality of finding emails implicating Huma while searching a computer seized for an investigation into underage sexting, the revelation that FBI somehow forgot to get a warrant for two to three weeks raised even bigger questions.

In the last day, both the NYT and the WaPo have provided different explanations about it (though they use it to explain the time lapse between discovering the emails and informing Congress, not getting a warrant). The NYT reported that the FBI had to write custom software to be able to read Weiner’s emails without at the same time reading Huma’s.

The F.B.I. has not explained why three weeks passed between the time the bureau obtained the laptop and when Mr. Comey told Congress about it. After an F.B.I. computer analysis response team in New York copied the laptop’s hard drive, bureau employees began examining the information on the computer.

That is when agents realized that Ms. Abedin’s emails were on the laptop, but they did not have the authority to view them without a warrant.

The F.B.I. needed custom software to allow them to read Mr. Weiner’s emails without viewing hers. But building that program took two weeks, causing the delay. The program ultimately showed that there were thousands of Ms. Abedin’s emails on the laptop.

Mr. Comey was not briefed in full on a plan to read the emails until last Thursday, Oct. 27. He informed Congress the next day. F.B.I. lawyers then had to obtain a second warrant to look at Ms. Abedin’s emails, which happened last weekend. [my emphasis]

WaPo reported that “glitches” delayed the FBI in separating Weiner’s emails from Huma’s.

Although investigators had discovered the emails in early October, software glitches prevented them from separating Abedin-related emails from the hundreds of thousands of messages recovered until Oct. 19 or 20, according to people familiar with the case.

While Comey had been quickly alerted by his deputy to the original find, he took no further action, allowing agents in the field to get a better idea of the scope of the material. Agents could use digital clues to decipher where emails had originated and been sent but were legally barred from reading the emails without a search warrant because they had been obtained in a separate investigation.

When agents formally recommended on Oct. 27 that the warrant be sought, Comey agreed and then felt obligated to inform Congress — which he did with his letter the following day. Comey’s only reference in the letter to the timing of his involvement was that he had been briefed the previous day. [my emphasis]

Note NYT says Comey was not briefing on the plan to read the emails until October 27. WaPo says that he was in the loop before then, then consulted again on obtaining a warrant on October 27. Those aren’t necessarily conflicting stories — I guess it depends on what “a plan to read the emails” means — but I find the distinction curious.

The real batshit thing, though, is the claim that the nation’s premiere law enforcement agency didn’t have a way to sift out Weiner’s emails from Huma’s, something even garden variety cops have to do every day. Equally batshit is the claim they created a new piece of software to do so. Glitches? That’s a word national security people use as a cover story.

There is no good explanation for why the FBI didn’t have the technical means to do this. There is even less of an explanation for why, in a case involving such high profile people, the FBI would be struggling with “glitches.”

Which leaves us where we were with WSJ’s story: The FBI was fiddling with these emails for 3 weeks before “officials realized that no one had acted to obtain a warrant.” And yet somehow, the FBI was able to show probable cause that these emails had some tie to a crime.

I do hope this is something Patrick Leahy insists on getting answers on, because the story stinks.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

21 replies
  1. harpie says:

    Hi Marcy,

    Note NYT says Comey was not briefing on the plan to read the emails until October 27.

    [typo-“briefing”-briefed?] The phrase”in full” [NYT] seems kind of slippery to me. And, use of the word “glitch” seemed weird, too…thanks for explaining.

    And yet somehow, the FBI was able to show probable cause that these emails had some time to a crime.

    [typo? “some…” connection?] Curious and curiouser…

  2. der says:

    Christ. Why didn’t Comey ask Zuck? Or Brin and Page to lend one of their hackers? Cyber War, Ground War, Air War, Drone War, War on Terror, War on Drugs, War on Africa, War on the Middle East. Our National Security State, our Best and Brightest. The American Dream, wishing it Great Again. What a waste of money, but hey it’s not going to the line cutters. Christ.

  3. bloopie2 says:

    In my Outlook, I can with one click sort emails by To, or by From, or by Subject. Unbelievable.

    Also, I’m confused–were Weiner and Abedin using the same email address? If not, then why are the two sets of emails commingled?

  4. Peterr says:

    . . . software glitches prevented them . . .

    This sounds exactly like certain police departments, when trying to explain why the body cameras didn’t work, and there’s no record of what happened that left someone beaten or dead at the hands of one of their officers. “Must have been a glitch in the software of the camera . . .”

    Riiiiiiight.

  5. Seriously People says:

    I love all of you people commenting who are just pros… “Ohh my outlook lets me do this”. What part of Metadata don’t you understand, oh that’s right… none of it.

    Metadata isn’t plain text where you simply read a “to” and “from” address. It includes a vast amount of data beyond the content of the emails themselves. I’ve done data recovery and it isn’t as simple as copying a file, double clicking it and being done. Also the methods used to sift through the data to accurately place the message and confirm its authenticity is vital to a successful case. Take one mis-step and the entire lot of evidence can be thrown out because it wasn’t handled properly.

    Some of you guys have seen too many damn movies on “hacking”.

    • Anon says:

      While metadata is large it is also structured and there exist e-discovery tools to process it. Unless Abedin stored her email in some exotic format (which is unlikely) or encrypted (which is possible but would take longer than a few weeks to break) I find it unlikely that they would need special software to sort them. While the FBI is not the most technically savvy they do process email and other electronic records all the time and would likely have off the shelf tools for that.

  6. Evangelista says:

    I would suggest not giving any especial weight to the pause between the FBI Weiner Investigation team’s start in analyzing the Weiner computer content and discovering clintonmail server content on it and deciding to comb that (for Weiner emails) and failing to find and writing ‘a program’ (a script to search deeper than header data for “weiner” or key words/phrases, which is most likely all the ‘special program’ would have been, and which would most likely have been written for a whole file of substantial size on Weiner’s laptop returning no Weiner hits) and suspicion dawning, then maybe an Abedin search and then arguing and taking the case to Comey and then Comey making a decision, then waffling, with Bureau argument, before making a decision to follow up, reopen, notify and on forward.

    Those are a lot of steps, and in an election year, with custom being to not interfere the decision would not be to the easy option, especially for Comey, having painted himself in with his closing of the clintonmail investigation. Comey would undoubtedly have been looking for a way to go with a “Leave the whole thing alone” decision.

    My suspicion is that a “leave it alone” avenue was closed by the word “should”, instead of “shall” in the ‘avoid involvement in politics’ rule. The should is there to prevent following the rules sucker-punching the public, in an event where a truly unacceptable to public and nation potential is probable. The ‘probable’ here would be ‘probable cause’ and the rules governing determination of probable cause, as they have been loosened by prosecutors and courts over time, would guide the decision-making.

    If there is something potentially very serious in the data, and an agent ‘peeked’, or ‘accidentally saw’ something gorey, we may never have confirmation, since in case of something that serious exact adherence to precisely proper procedures are recognized requisite, and everything would be backed up to where proper procedures could start forward with no potentially objectionable wobbly spots.

  7. Evangelista says:

    P.S.:
    Reading all the tea-leaves, and putting things together, I suspect that if Hillary wins the 2016 U.S. Presidential Election the U.S. will have a President Kaine.

  8. JerryN says:

    There’s an aspect of this whole thing that’s not clear to me. I haven’t found any statement from any source that clearly state that there were emails that were either from or to Abedin that did not also have Weiner’s address in the header info. What I’m saying is that they’re married and it would be normal for there to be some email traffic between the two of them, so Abedin’s address would appear in the metadata. It’s also likely that there were emails where both of them would have been in the “To:” address list, since not only were they married, but their professional lives overlapped somewhat. Am I missing something?

  9. Bardi says:

    To: Seriously People.

    I parse “meta-data” quite a bit. While I appreciate your “counter view” (sometimes people run away with themselves), it is actually very easy (Heck, I used to put web pages together with vi). To take two weeks to write a script is absolutely insane (five minutes is plenty, ten for a court case) and paints the FBI as incompetent, at it’s best.

    Someone was pacing the timeline.

    • JJ says:

      Yes, exactly.  Even given that they might have written many scripts, this is something that Comey and a tech could do in a few hours, at most.  After a few hours of writing scripts on the metadata, because the FBI is interested in the content which is by definition not contained the metadata, the FBI should have reached a conclusion to search the content after a few hours of examining the metadata, or prior to examining the metadata, assuming a mediocre level of technical competence.

  10. Kathleen says:

    Would seem like there would be a legal bridge from one investigation to another when federal officials find suspicious emails while they are investigating another case.  Huma Abedin did testify under oath that she had handed all of her emails having to do with the investigation over to the FBI. Clearly that was not the case.

    Any laws that would provide the FBI with cover to read the related emails before they had a new search warrant?

     

  11. Avattoir says:

    Kathleen: “Clearly that was not the case.”

    You actually don’t know that.

    I don’t visit here as much as I used to, but I do see some ‘new’ names that remind me of the partisans who so often checked in during 2004-07, during SpyGate / PlameGate / the Case Against Libby.

    Except those partisans were open about it, including about who they actually were. This seems to me new for MTW’s websites.

    If a leaky source sets a little paper boat out into the sewers that lead from anti-Clinton FBI agents to media appliances like Baier & Barrett that conveys in slippery, vague, untraceable, unverifiable, filtered language the message that something is ‘new’ & ‘pertinent’, that doesn’t mean it’s either. It simply means that the process has produced such a message.

    AFAIK there’s nothing those little paper boats in the sewer system have carried out that remotely approaches confirmation or reliability of anything.

    I’ve been on cases where actual prosecutors in front of actual judges in actual courts make undertakings and promises of proof that are substantially more seaworthy than these little paper boats, and STILL they’ve foundered & gone down with all souls.

    And not just on over-promising. A number of times problems derived from line prosecutors naively believing what they’re fed by investigators, whereas on delivery the product turns out way underpowered, or ill-suited to the task, or even can’t even get into evidence in the first place, it’s so gunked up with 4th amendment issues. Other times it’s more like a True Believers problem, where it’s impossible to detect any separation between investigators & prosecutors, there’s been no objectivity from the outset, & the actual public integrity problem lies in the case for the prosecution.

    Those aren’t rarities; the frequency with which they tend to show up tends to go up by something like exponential factors in cases involving celebrity / notoriety & complexity.

    Moreover, the kind of investigator who goes for such inane even insane ideas, like using a Regnery booka as a blueprint for investigation, typically will be among the laziest, most gullible, most inept, most catastrophe-prone, rottenest & all-in-all worst of their profession, & by far the most likely to produce a case that’ll fall apart, disastrously, even laughably.

    But here, we’re not even here considering a case of an inattentive or naive prosecution section, or some assembly of naive, gullible, inept line prosecutors. If it weren’t for the name Clinton being attached to this, this entire confederacy of dunces have been deep-sixed months to years ago.

    • bmaz says:

      Yeah, there is no evidence I have seen against Abedin on that. She has cooperated with the FBI and testified willingly. Her attorney has said that she was not aware she had email material on Weiner’s computer.

      As to “investigation”, I can’t even discern for certain to what extent there really is a full on criminal investigation going as opposed to a preliminary as to the “new” material. But the Trumpalo claim of “far reaching serious criminal investigation of Hillary Clinton” is clearly patent bullshit.

    • Kathleen says:

      “I don’t visit here as much as I used to, but I do see some ‘new’ names that remind me of the partisans who so often checked in during 2004-07, during SpyGate / PlameGate / the Case Against Libby.”

       

      Not sure what this vague statement is inferring?   I was totally in support of the Bush administration being taken to task for outing Plame.

      If there is partisanship going on here wondering if folks here at EW’s can apply the same scrutiny to Clinton as to Bush and Cheney?

       

      • Evangelista says:

        Kathleen,

        Avattoir wrote several paragraphs, or lots of words, to inform you that it is preferable to use the phrase, “Apparently that was not the case.” instead of “Clearly that was not the case.”

        I thought bmaz would clarify that in few words, but he went astray, lured by echo-sirens to wrack on tangents (legal rocks).  I’m tossing in these few words to help out while he’s patching and getting back afloat:  When communicating to lawyers, or any who might be or pose to be lawyers (including judges, who are just lawyers in legal-burkhas), always say “evidence” and “appears” and “wherefore”, to hold them on point and not lose them on tangents.  You can say “Wherefore, the evidence clearly appears to show…”, but that makes them start and stop, so it’s kinda mean…

  12. Kathleen says:

    One thing that is obviously clear is that I am not involved in the legal world. Just a peasant out here trying to make sense (futile I know) of what my government, military and officials are up to.

    So are you saying that Comey is part of what you are calling “little paper boats” leaks? That he contacted congressional members to let them know their was an ongoing “inquiry” or “investigation” into new information acquired on the Abedin/Weiner computer linked to the previous HRC email investigation to interfere in the election? That there is no basis at all for the “inquiry” or “investigation?” Is that what you are saying?

    http://www.thedailybeast.com/articles/2016/10/29/huma-abedin-swore-under-oath-she-gave-up-all-the-devices-containing-state-department-emails.html
    “Huma Abedin Swore Under Oath She Gave Up ‘All the Devices’ With State Dept. Emails
    The FBI found emails pertinent to its Clinton investigation, reportedly on a computer from her aide’s home. That doesn’t jibe with she told lawyers this summer.
    M.L. Nestel
    Jackie Kucinich
    10.29.16 1:27 PM ET

    In a normal election year, a normal candidate’s close aide who caused even minor embarrassment to a campaign so near to Election Day would be whisked away as quickly as possible to avoid becoming a distraction.

    But Huma Abedin is not simply a close aide, she’s a critical member of Hillary Clinton’s tiny inner circle that protects and — at times — enables the deeply flawed and secretive Democratic nominee.

    So despite FBI Director James Comey’s announcement that the bureau is reviewing emails from Abedin’s time at the State Department reportedly found on a laptop she shared with her soon-to-be ex-husband Anthony Weiner (confiscated as a part of the FBI’s investigation into allegations he sexted with a 15-year-old North Carolina girl), the campaign made clear over the weekend that she’s not going anywhere.”

Comments are closed.