The 4th Amendment Problems Presented by the Latest Clinton Snipe Hunt
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There is absolutely no question that James Comey’s intervention into the presidential election was a serious violation of well-settled procedural norms. One can imagine circumstances in which such a violation might be justified. But given that Comey’s letter contained no substantive information and indeed did not have any discernible purpose other than influencing the election — and hence constitutes a textbook example of why the relevant norms exist — it is blindingly obvious that this case was not such an exception, and Comey’s letter was at a minimum grossly irresponsible.
Orin Kerr raises another interesting question: could the search of Anthony Weiner’s emails led to an investigation of Clinton without violating the Fourth Amendment?
If these facts so far are accurate, the FBI may have violated the Fourth Amendment in expanding the investigation from Weiner to Clinton. 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.
The first issue is whether the FBI was permitted to search through Abedin’s email account for records of Weiner’s illegal messages with underage girls. In People v. Herrera, 357 P.3d 1227 (Colo. 2015), the Colorado Supreme Court provided some reason to think that the answer may be “no.” In Herrera, the government had a warrant authorizing the search of a cellphone for messages between the defendant and an undercover officer who had posed as a underage girl. When the police executed the warrant, the officers also searched a folder that contained messages between the defendant and a different (real) underage girl. The court held that searching the folder violated the Fourth Amendment because the only evidence authorized to be seized in the warrant — the messages between the defendant and the undercover officer — weren’t likely to be in the folder containing messages between the defendant and the other girl. I have criticized that reasoning, but it raises questions about whether the FBI could look through Abedin’s account for Weiner’s illegal emails.
There might be similar problems because the alleged Weiner texting crimes apparently occurred in 2016. I gather that the Clinton emails were from her time as secretary of state, which was several years earlier from 2009 to 2013. If I’m right that there was a several-year gap between the warrant crime and the second investigation, it’s not clear the government could search through older emails for evidence of such a recent crime. See Wheeler v. State, 135 A.3d 282 (Del. 2016) (holding that the Fourth Amendment was violated when a warrant to search computers for witness tampering that occurred in 2013 did not include a date restriction on how far back the search could extend; evidence of crime from a computer not used since 2012 suppressed as a result).
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).
But if that’s true, there’s a problem: The plain view exception does not allow evidence to be seized outside a warrant unless it is “immediately apparent” upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant. See Arizona v. Hicks, 480 U.S. 321 (1987); United States v. Williams, 592 F. 3d 511, 522 (4th Cir. 2010).
Read the whole etc. It’s possible that the search the FBI is now undertaking is constitutional, but it’s very possible that this particular application of the Clinton Rules is inconsistent with the Bill of Rights.