You want to know what a legitimate search warrant looks like? Just to illustrate, let the Chimps tell you a story. It’s a good one.
Once upon a time, in a case called UNITED STATES v. GYAMFI, United States District Court, S.D. New York, No. 14 Cr. 157(PAC)(2014), dude named Frantz Ostine walked into a New York Police Department precinct and told quite a tale. Turns out this cat Ostine had been robbed a few days earlier by perps with cojones the size of The Big Apple. Not only did the scoundrels make off with a bevy of Ostine’s treasures; they also enlisted Ostine, an unwitting dupe, in their criminal enterprise. To wit, they told Ostine that now that they knew who he was and where he lived, he would henceforth accommodate their wishes or, in the alternative, proceed hastily past middle and old age and into eternal hibernation.
Needless to say, Ostine opted for this dimension rather than the next, but it proved a less satisfactory choice than one might have imagined. You see, the bad guys were as persistent with their phone calls and texts as a jilted ex-lover. They used poor Ostine as a check-cashing whore, driving him from bank to bank on multiple occasions to deposit and cash checks, laundering their ill-gotten lucre through Ostine’s bank accounts. They also took Ostine’s ATM card and took his own money out of the bank.
Finally, one morning, Ostine had had enough. The bad guys had called and texted yet again to say that they would require Ostine’s cooperation later that day. They said they’d pick him up in front of his apartment building in a white van. But Ostine had figured out that this new arrangement with his criminal abusers was never going to end. Long story short: the white van did arrive, but when its occupants opened the door so Ostine could mount the van, they were instead joined by several New York City police detectives, whose curiosity as to the van occupants’ business was soon made apparent. You see, Ostine had told the cops about his little problem, and while he’d been inside the police station talking to detectives, his cell phone, lo and behold, would not stop buzzing with phone calls and texts. Those texts and calls having corroborated Ostine’s unlikely story, police had agreed to accompany Ostine to his apartment and, if the white van were to arrive, to take it from there.
Now, after all this mess transpired, police were keen to find out what might be discovered on the cell phone used by the bad guys, which, as one might imagine, had been seized as evidence. So police applied for a search warrant.
This brings us to the salient point. Under the US Constitution’s Fourth Amendment, a judge or magistrate may only issue a search warrant when police have presented enough evidence (usually in the form of a sworn affidavit) to show probable cause that the item to be searched contains evidence of a crime. For our purposes, let’s indulge the common-sense supposition that what we mean by crime is not just some conjectural or speculative or arguable twisting of some law or statute, but a prosecutable violation of a criminal statute. So a warrant should issue when there is probable cause to believe that the item to be searched contains evidence of the prosecutable violation of a criminal statute.
The case of Franz Ostine provides a nice factual illustration of when such a warrant should be issued. Police had in their possession a phone that they knew had been used to contact Ostine leading up to and during the commission of multiple crimes. The communications to be found on the phone were likely to establish the elements of solicitation to violate criminal statutes, conspiracy to violate criminal statutes, and accomplice liability for violating criminal statutes, not to mention, of course, substantive violations of those same criminal statutes. Police knew what crimes had been committed through the use of the phone, and they knew the phone (which was linked to the phone number they saw appearing on Ostine’s phone) was the same one used to commit those crimes.
Now let’s look at FBI Director Jim Comey’s reasons for upending a national presidential election. Just days before the election, he wrote breathlessly to members of Congress that he and his minions were in possession of new information: more … wait for it … gasp! … EMAILS! He didn’t know what was in those emails or for what purpose those emails had been sent, but he did know that emails existed where none had been known by him to exist before: on a laptop belonging to Anthony Weiner, who is not just the famously proud owner of Anthony Weiner’s penis, but also the estranged husband of Huma Abedin, Hillary Clinton’s most important advisor. Some of those emails appeared to involve exchanges between Abedin and Hillary.
This bears repeating: neither Comey nor anyone else in federal law enforcement knew what the emails on the laptop were about or whether the laptop had been used in the commission of a crime perpetrated by Clinton or Abedin. To the extent that any crime might have been committed, Comey certainly couldn’t guess what crime. In fact, here is what Comey had already concluded after he and his investigators had already pored over tens of thousands of Hillary’s other emails, including emails she exchanged with Abedin:
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
Comparing cases can be invaluable when trying to understand the proper application of legal principles. In the Ostine case, law enforcement officials had probable cause to believe that multiple crimes had been committed, and they knew what crimes had likely been committed. The criminal violations likely to have occurred were concrete and prosecutable. They also knew that the phone they wanted to search had been used in the commission of those specific, concrete, prosecutable crimes. In the Clinton (Abedin) case, law enforcement officials not only sought a warrant but also blew up an election with global implications with probable cause to believe that, like all the tens of thousands of emails they’d already read, the new ones would contain no evidence of any prosecutable criminal wrongdoing.
The sum total of the allegations contained in the FBI’s application to search the Weiner/Abedin laptop was that it contained emails between Clinton and Abedin. Naturally, the FBI got its warrant. (That’s because judges and magistrates routinely ignore the United States Constitution when deliberating on such matters.) And then the FBI searched the laptop. And then the FBI found exactly what it actually had probable cause to believe it would find: not a goddam thing that would warrant (no pun intended) a criminal prosecution.
Comey, the FBI, and the magistrate who signed off on that warrant behaved in ways that did violence not only to established norms and protocols, but to the Constitution itself. A bigger scandal could scarcely be imagined. (What could top this? It would have to be something very far flung – maybe a hostile foreign power installing a stooge in the White House? But come on, let’s not descend into fantasyland.)
It’s time to get our talking points straight. It’s not just that the FBI lacked probable cause to believe that Weiner’s laptop did contain evidence of a Clinton crime; it’s that the FBI had probable cause to believe that Weiner’s laptop contained no evidence of a Clinton crime. Despite that, Comey derailed Clinton’s campaign and greased the skids for Donald Trump.