Yesterday at noon, a warrant was unsealed in which a United States Magistrate Judge approved the FBI’s application to search a laptop apparently belonging to Anthony Weiner for any potentially classified emails from Hillary Clinton. Commentators have since raised multiple questions about the warrant, including whether it adequately demonstrated probable cause that Mr. Weiner’s laptop contained evidence of a crime. One question that has not received any attention, however, is whether the DOJ violated its own strict and detailed policy that covers, among other things, search warrants on property belonging to "members of the news media"—a category that surely includes Anthony Weiner, who has worked over the years for multiple news outlets. Had the DOJ followed its own policy, the warrant may never have been approved, or at least may have been delayed until after the election. To the extent the DOJ did not follow its policy, this failure could add substantial fuel to the argument by those who claim that the warrant was a “meritless” attempt by the FBI to influence the 2016 presidential election.

The policy in question is reflected in 28 C.F.R. 50.10 and is set out in Section 9-13.400 of the DOJ’s U.S. Attorneys’ Manual, which runs some 10,000 words and provides guidance regarding the necessary steps prosecutors must follow when obtaining information—including via search warrant—from members of the news media. As an initial matter, the policy says it “does not define ‘member of the news media,’” stating only that this is a “fact-specific inquiry.”

Pausing there for a moment, although he is better known for other activities, and may not typically be thought of as a “member of the news media,” Anthony Weiner clearly falls in this category: He has been a columnist for the New York Daily News, a political columnist at Business Insider, a semi-regular contributor to the New York Post, and a contributor on the television channel NY1, among other outlets. As a member of the news media, Mr. Weiner has covered the presidential election, among other things, which raises the distinct possibility—however remote—that emails on his laptop from Hillary Clinton could have been obtained in the course of newsgathering activity.

With respect to search warrants, the DOJ policy imposes a series of stringent requirements, and it is not clear that they were met in this case. For example, the policy requires that members of the DOJ “must obtain the authorization of the Attorney General to apply for a warrant to search” the property of “a member of the news media,” and that all requests of this nature “must personally be endorsed by the United States Attorney or Assistant United States Attorney General responsible for the matter.” (There is an exception when the conduct at issue is not “based on” or “within the scope of, newsgathering activities,” but even in that instance, “members of the Department must secure authorization from a Deputy Assistant Attorney General for the Criminal Division.”) It is not clear that these approvals were obtained here.

More importantly, the policy requires that “in investigations or prosecutions of unauthorized disclosures of national defense information or classified information,” the requesting DOJ member “shall obtain from the Director of National Intelligence a document certifying (1) the significance of the harm raised by the unauthorized disclosure, (2) that the information disclosed was properly classified, and (3) re-affirmance of the intelligence community’s support for the investigation or prosecution.” This policy appears to be driven by the significant public interest in fostering the role of the free press, particularly in those cases where a member of the news media somehow obtains classified information. (The DOJ followed this policy and obtained the necessary certification in the case of former CIA officer Jeffrey Sterling, for example, in which the DOJ sought information from New York Times reporter James Risen.)

The warrant unsealed yesterday appears directly to implicate this provision of the DOJ’s rules, as it expressly relates to the unauthorized disclosures of classified information to a member of the news media. For example, in the warrant application, the FBI posits that the unauthorized disclosure of some of the emails at issue—and their presence on Mr. Weiner's laptop—“could result in exceptionally grave damage to national security.”

There is no indication in the warrant materials or the public record, however, that the Director of National Intelligence, James R. Clapper, ever provided prosecutors with the necessary certification that as of late October, there was a significant harm flowing from the unauthorized disclosure of the emails, that the information in those emails was properly classified, or re-affirming that the “intelligence community” still supported the continued investigation of the matter. From Mr. Clapper's recent public statements, it appears doubtful he ever provided such a certification: During recent congressional testimony, for example, he was asked about the Clinton email investigation, and said nothing about ever personally certifying the DOJ's effort to obtain the warrant.

From The Insider Blog:  White Collar Defense & Securities Enforcement.