FBI Director James Comey’s bombshell letter to Congress, which has the potential to affect the presidential election, may be based on illegally obtained emails, writes constitutional scholar Clark Cunningham of Georgia State University for Slate. The emails were found during the FBI’s probe of allegations that former Rep. Anthony Weiner (D-NY) sent sexual test messages to a 15-year-old girl in North Carolina. The FBI has a troubling history of abusing search-warrant powers to go on unconstitutional fishing expeditions through Americans’ email. It seems likely that happened again here, Cunningham says.
The Fourth Amendment to the Constitution states that no search warrant can be issued unless it “particularly describes the place to be searched and the things to be seized.” Did the warrant for Weiner’s laptop “particularly describe” emails sent to or received by his estranged wife, Hillary Clinton aide Huma Abedin, while she worked at the State Department as material that could be seized as evidence of the alleged sexting crime? That seems highly unlikely, Cunningham says. Why were federal agents looking at any emails belonging to the suspect’s estranged spouse? Surely the FBI didn’t think Abedin was involved in the alleged sexting crime. Comey’s letter says the FBI has no idea if the emails are even “significant.” So how could the FBI get a search warrant to review them? In a New Jersey case, the FBI went beyond the limits of a search warrant to download the entire contents of a lawyer’s cellphone. Federal prosecutors in that case are telling a federal judge they can legally keep and use the downloaded data even if the judge rules it was obtained in violation of the Constitution, Cunningham says.