Image by Alex Wong/Getty Images

By Talya Zax December 13, 2016

Lawyer E. Randol Schoenberg is well-known for his work pursuing restitution of art stolen in the Holocaust; this week, he’s made headlines for filing a lawsuit against the FBI. The lawsuit demands the agency honor Schoenberg’s Freedom of Information Act (FOIA) request to see the search warrant they obtained to investigate Anthony Weiner’s laptop as part of an ongoing investigation of Hillary Clinton for her use of a private email server during her tenure as Secretary of State.

Yesterday, Schoenberg embarked on a second prong of the same appeal: filing a separate action to unseal the court documents involved in the granting of the warrant, which requires a federal judge’s approval. In a special hearing this morning, judge P. Kevin Castel of the Southern District of New York heard arguments on the action.

“It seems very clear to me that FBI Director Comey’s October 28 letter announcing a reopening of the investigation into e-mails from Hillary Clinton changed the outcome of the election,” Schoenberg wrote on his blog on November 14, outlining his initial FOIA request. He explained the FBI required a search warrant to investigate Weiner’s computer, and that under the Fourth Amendment, that warrant needed to be supported by the establishment of probable cause that such an investigation would reveal a crime.

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Since the FBI has not yet disclosed the evidence on which it relied to procure a warrant — and, Schoenberg told the Forward over the phone, “the FBI isn’t usually in the business of not finding things when they search” — he believes the search warrant might reveal the FBI acted improperly in investigating Weiner’s computer as part of its investigation into Clinton’s use of a private email server.

He’s especially concerned about that potential impropriety given potential ties between the FBI and President elect Donald J. Trump’s campaign. During the presidential campaign, Trump surrogate Rudy Giuliani frequently asserted he was in contact with the FBI over the Clinton investigation. While such contact has not been verified, Schoenberg believes the public has a right to know if mistakes were made in investigating Weiner’s laptop, and if so, to whom those mistakes can be traced, both in and outside of the FBI.

“These type of things have in the past led to very serious repercussions,” he said, citing the investigations into the Watergate scandal that eventually led to President Richard Nixon’s resignation.

In this morning’s hearing, Schoenberg said, Judge Castel had seemed amenable to his filing.

He “ordered the Department of Justice to deliver all the documents required for the search warrants to his chambers by Thursday, with arguments for why it should be redacted before being released,” Schoenberg said.

Schoenberg, who lives in Los Angeles, was not present at the hearing. According to his New York attorney, the Department of Justice lawyers present at the hearing argued the warrant should not be released because of an ongoing investigation of Weiner. The judge, Schoenberg claimed, “said that’s totally irrelevant.”

“It seems from my attorney’s perspective that the judge was very interested in being proactive,” Schoenberg said. There’s no telling on what timeline the judge might operate, he added, but “it sounds very much like he’s going to release the search warrant after reviewing things on Thursday and redacting any info that needs to be confidential.”

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