A Los Angeles lawyer is suing the Justice Department to obtain the documents supporting FBI director James Comey's late-October investigation into Hillary Clinton, which Comey publicized in a dramatic breach of protocol 11 days before the presidential election. The lawsuit, filed today in New York federal court, follows up on a November 12th Freedom of Information Act request by E. Randol Schoenberg, an attorney who specializes in the recovery of property looted by the Nazis. The records request and lawsuit seek the search warrant and supporting documents that the FBI and Justice Department used to review the Clinton-related emails of Huma Abedin that were found on Anthony Weiner's computer, during a separate investigation into his reported sexual online messages to a teenage girl in North Carolina.
"The American public has a strong interest in the disclosure of the search warrant and related application, affidavits, and receipts," the lawsuit reads. "The FBI is the nation's premier law enforcement agency. Access to the records that underlie criminal investigations is crucial to ensuring that the FBI is accountable for following the legal standards it is required to uphold."
On October 28th, Comey sent a letter to Congress explaining that he was revisiting the investigation into Clinton's use of a secret, insecure email server while secretary of state, because of new emails discovered in an unrelated investigation, which turned out to be the Weiner probe. Two days later, the New York Times reported that the FBI had obtained the search warrant it needed to proceed.
Over the summer, Comey had announced he was essentially closing the investigation into Clinton despite his misgivings over Clinton's behavior, also a breach of federal protocol regarding the discussion of investigations. His announcement that he was again investigating emails related to Clinton dominated headlines for nine of the 11 days leading up to the election—the fervor subsided when he announced, on November 6th, that the FBI would stand by its original determination on Clinton. Following her stunning upset loss by what now looks like about 80,000 votes in three key states, Clinton herself blamed Comey for the outcome, and Democratic Senator Harry Reid and others suggested that Comey may have violated the Hatch Act, which prohibits certain federal employees from engaging in political activity.
E. Randol Schoenberg's legal fight with the Austrian government on behalf of a Jewish refugee from the Nazis, seeking the return of paintings by Gustav Kilmt, was the basis of the 2015 movie Woman in Gold. (Tommaso Boddi/Getty)
The crux of the issue, according to Schoenberg, is contained in documents showing how the FBI got the warrant signed off on by a judge. To do so, law enforcement agents need to show the judge that there is probable cause to believe that a crime has been committed. Schoenberg speculates that either conservative-leaning federal officials made a case as if Clinton was an organized crime boss, i.e. "She's always up to no good, we're just not sure what she's doing," which wouldn't meet the bar of probable cause and could get the judge in trouble. On the flip-side, he said, it's possible that someone acting as an informant or witness provided false information to the FBI, possibly for political purposes, which should prompt its own investigation, given that lying to federal agents is a crime.
"How did that [warrant] get issued, and did someone do something wrong in getting that issued?" Schoenberg said. "Especially given the fact that many people believe, including me, that it changed the outcome of the election."
Ahead of Comey's October announcement, Donald Trump surrogates including Rudy Giuliani boasted of their ties to the FBI, claiming insider knowledge of a revolt against Comey's decision not to prosecute Clinton, and of coming revelations. Schoenberg said that he did not have any specific evidence to support the hypothesis that Trump allies planted the investigation, but that he has personal experience lobbying federal law enforcement via his work on returning Nazi-stolen art, and that it's very possible someone did something similar to make this happen.
Pressuring the authorities to look into something can be legitimate, he said. The difference, he said, is "Here there was never going to be any crime...especially after they had already investigated it, so why was a warrant issued?"
Schoenberg's lawsuit demands an injunction requiring the feds to depart from their usual timetable and process the FOIA request immediately. This, he said, is because in his experience FOIA requests can take years. He hopes that the documents enter the public record before Trump takes office in January.
"I think this one is a little bit more urgent," he said. "If—and this is obviously a huge leap—if there was some illegal activity that led to this failed search warrant and that traces back to the Trump campaign, that could have huge ramifications with Congress and the electoral college."
There is also, he acknowledged, the possibility that the basis of the warrant could point to some malfeasance by the Clinton camp, which he said would also be in the public interest to know about.
Schoenberg is best known for his long-shot legal victory in recovering five famous paintings by Gustav Klimt, stolen by the Nazis in Austria, for Maria Altmann, a Jewish refugee who resettled in the U.S. The battle over the paintings inspired the 2015 movie Woman in Gold. Ryan Reynolds starred as Schoenberg.
Schoenberg noted that he would rather prominent, well-resourced publications such as the New York Times and Washington Post had tackled the search warrant issue. However, he said he is happy to take it on, and that the task has some connection, however tenuous, with his work chasing Nazi bounty.
"I like tilting at windmills, and sometimes it turns out not to be as crazy as everybody thinks," he said. "[Maybe] I’m right that there’s some big story behind this, maybe i’m wrong...Sticking to your convictions, trying to think differently from everyone else is what I like to do."
The Justice Department has 30 days to formally respond, according to Schoenberg's attorney, David Rankin.
