Monday, October 31, 2016

What Happened to the 4th amendment ?

The FBI now has a warrant to read e-mails sent and received by Huma Abedin which are stored on a laptop which she shared with Anthony Weiner.

Kevin Drum asks what took them so long and strongly suggests that someone at the FBI wanted to make sure that the investigation was opened and not closed before the election.

"If the FBI knew about these messages weeks ago, they could easily have gotten a warrant and begun looking at them."

I think it is clear that someone (not the director) at the FBI has deliberately used his or her position there to influence the election at the expense of the alleged public interest in investigating Abedin e-mails. I'd say this is a clear violation of the Hatch act and that after being fired, this person should be investigated for possible criminal liability.

But there is something which isn't clear at all to me.

I don't understand how that was possible let alone easy. I vaguely recall the phrase "probable cause": It doesn't seem to me that the fact that Huma Abedin uses e-mail is probable cause to believe a crime has been committed. Last I checked e-mail was not banned. The fact that they sought a warrant means the FBI agrees that they can't read the stuff on that hard disk which was written by Abedin or to Abedin without a warrant. How can they obtain probable cause to believe something about what was written without reading any of it ?

Comey said that the Abedin related data on the hard disk "appears to be pertinent": How can one describe the appearance of something when one is not allowed to look at it ?

I stress that among the things that Abedin may have written which the FBI must not read without a warrant is the following text ".gov". I don't think they can obtain any evidence that any of the e-mails is work related without a warrant. I also don't think the FBI should have been granted a warrant without presenting evidence that at least one of the e-mails is work related.

I see no way to reconcile the decision of some judge with the 4th amendment.

Needless to say, I am not a lawyer.

Orrin Kerr is a lawyer (and a conservative). His post is worth reading.

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