So, months after clearing Hillary Clinton's slate by deciding she was stupid rather than malicious, James Comey has again gone rogue, declaring there's something worth investigating in emails recovered from a sleazy ex-politician's computer. (Thus subverting the norm of recovering emails from a sleazy, CURRENT politician's computer…)
The timing is, of course, suspect. The FBI really isn't supposed to be announcing investigations of presidential candidates this close to Election Day. As Marcy Wheeler points out, there are guidelines Comey appears to be violating.
Jamie Gorelick (who worked with Comey when she was in DOJ) and Larry Thompson (who worked with Comey when Comey was US Attorney and he was Deputy Attorney General, until Comey replaced him) wrote a scathing piece attacking Comey for violating the long-standing prohibition on doing anything in an investigation pertaining to a political candidate in the 60 days leading up to an election.
It's not the law, but it's something. And until Comey decided to merge Weinergate into Emailgate, this guidance has been followed:
Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.
It would be a bit much to claim Comey wants to see Trump in the White House. But he apparently has no qualms about violating internal DOJ gentlemen's agreements, which should raise questions -- as Wheeler notes -- about what other policies or guidance Comey considers optional.
The reason you can't put this down as a move meant to damage Clinton's campaign is because that narrative already got used up when Comey refused to recommend prosecution for actions most other government employees wouldn't have walked away from. Suffice it to say, the reaction to Comey's latest announcement depicts partisanship at its best/worst.
So of course the Republicans that had been claiming Comey had corruptly fixed the investigation for Hillary immediately started proclaiming his valor and Democrats that had been pointing confidently to his exoneration of Hillary immediately resumed their criticism of his highly unusual statements on this investigation. Make up your minds, people!
While certain voters sort out their love/hate relationship with James Comey, the next question about broken rules applies to the emails themselves. The FBI seized Anthony Weiner's laptop to search for evidence of alleged communications between Weiner and a 15-year-old. In the course of doing that, agents came across emails between Clinton aides and Huma Abedin, Weiner's estranged wife.
Apparently without knowing the content of these emails, Comey went ahead and decided to alert Congress to the new details of the investigation. Oddly, this happened before the FBI even had a warrant to search those emails -- though it received one over the weekend. Even with the warrant in hand, it's not entirely clear the agency has the right to do that under the Fourth Amendment. The laptop's search and seizure isn't at all related to the (supposedly closed) Hillary Clinton email investigation.
Orin Kerr examines the issues thoroughly at the Volokh Conspiracy. As he sees it, the FBI can't legally expand its investigation for several reasons. Court decisions have suppressed evidence in cases where searches have uncovered evidence of other criminal activity not related to the investigation at hand. These emails are clearly unrelated to the messages sent from Weiner that the FBI was looking for.
The FBI may try to avail itself of the "plain view" exception, but this claim would be dubious at best.
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.
Assuming the FBI hadn't already taken a peek, all that was known about these emails was that they involved a top Clinton aide. There could be no determination at that point that they contained classified or sensitive material. The Fourth Amendment doesn't (or at least shouldn't [stupid courts]) allow communications to be searched first in hopes of justifying the search after coming across some probable cause. The FBI needed to establish that first and it's unclear how it would do it without actually seeing the content -- though the fact that a court granted the warrant raises some questions about why.
Unfortunately, case law is nowhere approaching "settled" on the limits of digital searches. "Plain view" in regards to digital files is much harder to pin down. Some decisions have made it clear the government can't seize devices and look through everything in hopes of finding evidence of other criminal activity. Fishing expeditions are discouraged, but not every court has felt compelled to suppress evidence gathered in this fashion.
However that all shakes out, one thing is clear: James Comey is running the FBI like it's a one-man shop. He's managed to anger other FBI officials with his autonomous decisions and declarations. Marcy Wheeler notes in her post that the DOJ has shown it can't control Comey, and Comey himself -- in his letter to Congress -- suggested that if he didn't come forward with this, someone inside his agency would have leaked the information. So, the DOJ can't control Comey. Comey can't (or won't) control his own people. And Comey will continue to do things his way, no matter what collateral damage he may cause.