Richard W. Painter is a professor at the University of Minnesota Law School. He was the chief White House ethics attorney from 2005-2007 under President George W. Bush.
Painter knows the law and understands the rules of professional conduct applicable to government officials.
Complaint Filed Against FBI Director Comey
On Saturday, October 29, 2016—just ten days prior to the November 8 presidential election—Painter filed a complaint against FBI Director James Comey with the Office of Special Counsel and the Office of Government Ethics.
The basis for Painter’s ethics complaint was the release of a letter sent by Comey to eight ranking Republican members of Congress concerning emails discovered on a laptop computer belonging to former U.S. Rep. Anthony Weiner that “appear[ed] to be pertinent to the investigation” previously conducted against former Secretary of State and U.S. presidential candidate Hillary Clinton. The laptop had been seized by the FBI as part of its criminal investigation of possible illegal sexting between Weiner and an underage female.
Weiner’s connection to Clinton was through his wife, Huma Abedin, an important aide to Clinton. Through a cursory review of the Weiner laptop, conducted without a warrant, FBI agents discovered 650,000 messages linked to Clinton’s time as Secretary of State. Some of these email messages were either to or from Hillary Clinton and Abedin.
July Statement Indicated No Evidence of Criminal Activity
In July 2016, after an exhaustive investigation, Director Comey in a prepared statement informed the public through the press that there was no evidence that Clinton had violated any laws concerning her handling of official State Department emails during her tenure as Secretary. Comey, however, took the extraordinary step of personally criticizing Clinton for being “extremely careless” in the handling of those emails.
Concerns About Ethical Violations of Director
Serious questions were raised at the time about possible ethical violations Comey had committed by interjecting his personal opinions and feelings into an official FBI investigation that could have serious ramifications on the ongoing presidential election.
Those concerns never gained serious traction and the case was officially closed.
Then came the Weiner laptop discovery.
Comey decided to send his October 28 letter only to eight Republican members of Congress while simultaneously making it public. He undertook this official action even though he had absolutely no probable cause evidence that the Weiner laptop emails involved any criminal wrongdoing by either Clinton or Abedin.
FBI Warrant to Search Weiner Laptop
The FBI agent who prepared the affidavit upon which the Weiner laptop search warrant was based, however, swore that he believed the Weiner laptop contained “evidence, contraband, fruits, and/or other items illegally possessed” in violation 18 U.S.C. Sec. 793(e) and (f)—both subsections dealing with the mishandling of classified information.
The U.S. Supreme Court in Illinois v. Gates held that the probable cause standard is met by a law enforcement affidavit that establishes “a fair probability that contraband or evidence of a crime will be found in a particular place.” The probable cause standard requires more than “bare suspicion” that evidence of a crime will be found in that particular place; it requires a practical, common-sense determination of the probabilities, based on the totality of the circumstances.
Totality of Circumstances
The FBI had conducted a year-long investigation into Hillary Clinton’s handling of State Department emails which concluded there was no evidence of criminal wrongdoing. The “totality of the circumstances” surrounding that investigation made it more probable than not that the mere presence of emails between Clinton and Abedin discovered on Weiner’s laptop—emails that reportedly had not even been read by the agents who discovered them—did not involve any kind of criminal wrongdoing.
The Huffington Post recently carried a detailed piece concerning the unsealing of the affidavit and search warrant used by the FBI to conduct its review of the Weiner laptop emails—a review that discovered there was no criminal wrongdoing associated with the Clinton/Abedin emails.
Professor Painter knew a week before the FBI’s announcement about no criminal wrongdoing—just two days before the election, in fact—that FBI Director Comey had violated the Hatch Act, his ethical responsibilities, and a host of departmental guidelines by releasing that October 28 letter. That’s precisely why the law professor filed his ethics complaint.
FBI Director Interfered with Presidential Election
That Director Comey interfered with the presidential election, and contributed to Hillary Clinton’s ultimate defeat in the presidential election, is an indisputable fact.
Director Comey’s motives for interfering in the presidential election is not at issue; only the fact of his interference is at issue.
This fact was made clear in the HuffPost piece by Ken Katkin, professor at Salmon P. Chase College of Law, who said the mere presence of the Clinton/Abedin emails on the Weiner laptop alone was not sufficient probable cause to believe they contained evidence of criminal wrongdoing.
Partisan Politics Not Legitimate Law Enforcement Investigation
“The warrant application seems to reflect a belief that any email sent by Hillary Clinton from a private email server is probably evidence of a crime,” Katkin said. “If so, then it must be seen as a partisan political act, rather than a legitimate law enforcement action.”
Search Warrant Meritless
Katlin concluded that not only should the warrant never should have been sought but it most certainly should not have been issued by a federal magistrate. Katlin actually called the search warrant application “meritless.”
Katlin is not some New York-based FBI agent pursuing an unlawful grudge against Hillary Clinton, as has been widely reported in prominent news outlets, but rather he is a law professor who understands the difference between “bare suspicion” and legitimate probable cause.
Whether or not Director Comey succumbed to the pressure from lowly FBI field agents in New York wanting to pursue a litany of criminal investigations against Hillary Clinton will probably never be known. What is absolutely known is that Comey had not a scintilla of evidence or even a reasonable suspicion that the Clinton/Abedin emails on Weiner’s laptop constituted a violation of any portion of 18 U.S.C. § 793.
No Probable Cause of Crime to Support Search
California criminal defense attorney E. Randal Schoenberg, who sued and forced the release of the Weiner laptop warrant, agrees.
“I see nothing at all in the search warrant application that would give rise to probable cause,” he told HuffPost, “nothing that would make anyone suspect that there was anything on the laptop beyond what the FBI had already searched and determined not to be evidence of a crime, nothing to suggest that there would be anything other than routine correspondence between Secretary Clinton and her longtime aide Huma Abedin.”
Schoenberg added that he was “appalled” by the fact that the name of the FBI agent in charge of securing that warrant had been “redacted.”
A host of other legal scholars and experts reached the same conclusions drawn by Professor Katlin and attorney Schoenberg.
And this bring us back to the complaint filed by Professor Painter.
The release of the FBI’s affidavit/search warrant makes it clear, beyond any shadow of a doubt, that Director Comey unlawfully interfered with and unethically influenced the 2016 presidential election. The director should have the decency to resign, and failing that, Congress should demand his dismissal from the FBI.