The federal warrant used to search Anthony Weiner’s laptop for Human Abedin’s emails in the days before the election has been released. A lot of folks are wondering, does it establish probable cause? The answer is unclear to me, and I thought I would say why.
My uncertainty is partially about the facts and partially about the law. Let me start with the facts, with the caveat that parts of the affidavit are redacted. The case for probable cause appears to be this: By looking at the metadata on the laptop, agents knew that there were thousands of Abedin’s emails on the laptop dated from the window of time during which then-Secretary of State Hillary Clinton and her associates were known to have discussed classified information. Because Abedin was known to be in daily contact with Clinton, the affidavit argues, there is probable cause that some of those classified emails are on the laptop.
If the Fourth Amendment standard only required probable cause that there was classified information on the laptop, then it seems at least plausible that the affidavit established probable cause. It’s tricky given that parts of the affidavit are redacted, but it’s plausible.
It might be that simple, but it might not be. Here’s the problem. Simplifying a bit, the Fourth Amendment allows warrants to be obtained in two different kinds of situations: (1) when the government has established probable cause that contraband (items that are illegal to possess, such as illegal drugs) exists in the place to be searched and (2) when the government has established probable cause that a crime occurred and there is evidence of crime in the place to be searched.
In most cases the difference between these two situations doesn’t matter. But in some cases it does. For example, imagine marijuana is growing naturally in a field somewhere. No one planted the marijuana: It just grew on its own. In that case, the federal government could get a warrant to seize the marijuana as contraband because under federal law marijuana is illegal for anyone to possess. However, the government couldn’t get a warrant to seize the marijuana as evidence, as there is no probable cause that anyone knew of and controlled (and therefore possessed) it. The government could get a contraband warrant but not an evidence warrant.
Back to the Abedin warrant. The affidavit treats this case primarily as a contraband case (type 1), and it aims to establish probable cause to believe there was classified information on the laptop.
But here’s the catch: The unredacted parts of the affidavit don’t appear to establish probable cause if you treat the case as an evidence case (type 2). The affidavit doesn’t establish probable cause to believe that a violation of 18 U.S.C. 793(e)/(f) occurred and that there is evidence of that crime on the laptop.
Whether the affidavit establishes probable cause therefore hinges in part on a legal issue: Is classified information on a personal computer “contraband” that can be seized under a search warrant independently of whether a crime occurred?
Maybe, although I’m not entirely sure. Based on a quick skim, I found cases saying that “classified material in the possession of someone not cleared to have it is considered contraband.” In re Search Warrant for the Person of John F. Gill, 2014 WL 1331013 (E.D.N.C. 2014) (citing United States v. Moussaoui, 2002 WL 32001771 at *4 (E.D.Va.2002)). On the other hand, it’s not clear to me that those cases apply here, as the affidavit doesn’t make the case that the material was in the possession of (that is, in the knowing control of) someone not cleared to have it. There’s probably a significant amount of additional case law to work through on this, but I didn’t find it on a very quick look.
Finally, an important caveat: Whether the warrant established probable cause doesn’t answer whether the government violated the Fourth Amendment. In this long post on Oct. 30, I ran through several reasons that the search might be unconstitutional. Importantly. the warrant and its supporting affidavit shed no light on those concerns. Affidavits aren’t legal briefs. They are supposed to establish probable cause for a future search, but they don’t litigate the constitutionality of past searches. The documents released today give us a small window into the case, but they leave the most interesting questions unanswered.