FBI’s Meaningful Eight-Day Review of 650,000 Documents:  IMPOSSIBLE!

FBI’s Meaningful Eight-Day Review of 650,000 Documents:  IMPOSSIBLE!

The claim by FBI Director James Comey that a team of FBI and Department of Justice professionals completed a thorough and meaningful document review of the 650,000 emails found on Anthony Weiner’s computer defies credibility.  From a cold start, this would probably take months, probably many months.

As a lawyer, I have done this kind of work, including working on a team of up to 400 lawyers in one case, where just the photocopying bill alone was $1 million. It is called “document review” work typically for attorneys working as temp workers. Even in the private sector—forget bureaucrats with coffee breaks and civil service rules—this would take months even with a team of 200 to 400 document reviewers, typically lawyers, working around 60 hours a week.

To recall the context, only in October, 2016, the FBI discovered that 650,000 emails retained by Huma Abedin was on a computer shared with her husband Anthony Weiner. Huma Abedin is “Hillary’s brain” much as Karl Rove was jokingly called “George Bush’s brain.” Huma Abedin was Hillary’s key aide guiding Hillary as Secretary of State. Her role included the gate-keeper and funnel for information to the Secretary. So Huma’s archives of emails is vastly more complete and significant than Hillary herself.

The FBI cannot just glance at the emails quickly. To have any legal validity, the reviewers must know precisely what they are looking for. Everyone must apply the same criteria consistently. There must be written criteria, carefully thought through, issued to all of the reviewers. Unlike some casual project in the private sector, the FBI cannot just flip through emails. (Hint to timid Republicans in Congress: Demand to see the written instructions issued to the reviewing team.) The FBI would have to piece together what happened from the tidbit clues of different emails, including different email threads relating to the same topic. That could take months of analysis.

Remember that it took the FBI over a year to review 30,000 emails (55,000 pages). The State Department has spent six months already and is telling a federal judge it may take years to go through all of those emails. The main reason is to check if any of the emails contain classified information so that they don’t release anything they shouldn’t. But that’s exactly what the FBI was supposed to do with the 650,000 emails: Check for classified information.

Also it is not enough to look only at emails from Hillary’s illicit private email server. The review of 650,000 emails would have to look for the one last element of the crime: Intent. Emails that did not go through Hillary’s basement server would be relevant. Any emails might reveal that Hillary violated the Espionage Act intentionally. That would change Comey’s — well, an FBI Director with integrity’s — decision to recommend prosecution. So, yes, the FBI would have to review all 650,000 emails, not just those with Hillary’s email address from the computer server. We just learned from Wikileaks that Hillary had her maid printing out classified emails at the mansion in Chappaqua. That email proves intent, even though it is apparently not one of the private server emails.

Comey already announced evidence that Hillary Clinton was guilty of every element of the crime of mishandling classified information, except for intent or mens rea. Many with impressive prosecutorial credentials have explained that the crimes of which Hillary is guilty do not require proving mens rea. (Note that this means that the person was aware of and/or intended to do what the law forbids. It does not mean that they intended to break the law or knew there was a law against it. Mens rea means intending to do what is prohibited.) Many have pointed to evidence that Hillary had the requisite intent for criminal prosecution, including the wipe of her email archives with the “BleachBit” software shortly after receiving a subpoena from Congress.

However, we know that the FBI did not, in fact, review 650,000. There is an entire Washington, D.C. industry of “document review” companies that can throw hundreds of lawyers at a project. But here is how that actually works.

First, the FBI was reviewing the 650,000 emails from a cold start. They only got a warrant to look at those emails a week ago, late on Sunday, October 30. Normally, in the private sector, a law firm would know (even from just experience) months in advance that they are heading towards a massive document review project. They would plan for it, recruit dozens or hundreds of reviewers, etc. Not here. There was effectively zero time to plan for this gigantic job. (Because of the nature of the emails, the FBI would not use outside contract attorneys. They would have to scramble to pull FBI staff indiscriminately off other duties. That alone could take weeks of preparation and planning.)

Second, as mentioned, guidelines must be standardized so that every team member is looking for the same thing. It could compromise the entire effort if different reviewers are using different standards or different theories or concepts of what they are looking for. The result would not be valid. The FBI would have to write out instructions to the team. Someone high up would have to do some thinking about what exactly they want reviewers to look for.

In any legal or investigatory matter, you have to assume that anything which is not perfectly clear will generate problems. How much more with Hillary Clinton? They would have to have very clear instructions for every member of the reviewing team to follow in great detail and precision. Those instructions and criteria would have to be reviewed by many officials, polished, rewritten, and signed off on. In government that could take weeks.

Third, the entire batch of emails would need to be copied on hard copy. You can’t have document reviewers playing with the originals. They have to have copies of the originals There would be around 650 to 700 banker’s boxes of emails. Remember, I’ve done this dozens of times.

Yes, there is software that has grown in use. But that is worse. That means that every reviewer has to have a secure computer dedicated to the project, with set-up and installation (and now you are talking about government procurement rules). Every reviewer has to be trained, and has to have passwords issued. Ever try to work with the government IT office in your federal agency? They jealously guard their role and could take a couple weeks to set up passwords to the reviewing software for every member of the team, and distribute the passwords to hundreds of people. Remember that this is the government.

To just set up that many computers with the software would normally take at least two weeks, probably a month, even in the private sector.  Therefore, the old-fashioned way with hard copy paper is better for doing it quickly.

Fourth, document reviewers have to be trained to identify attorney-client privilege and attorney work product privilege. They cannot consider emails that they can’t use because they are privileged. Close calls need to be flagged and sent up the line for decision.

Fifth, if they find something of interest, it has to be flagged and sent up the line. We as reviewers would flag “hot docs” for close scrutiny by senior attorneys. (The guidelines for what is a “hot doc” would also require precise instructions to be developed.)

And all of that is where analysis would start. After pulling out the most interesting documents, senior investigators at the FBI would have to spend a lot of time thinking about what all of these email conversations add up to, what do they mean? Almost never do you have one email that is the smoking gun by itself. It is the overall pattern that counts. Weeks of analysis would be needed of the key emails out of 650,000 to see if different conversations in different places reveal an overall scheme.

So, in the private sector document review industry, 650,000 emails could not be reviewed in less than several months, starting from a cold start. Could the FBI get 400 people to just do a meaningless “stare at the page for a second ” project? Yes. But could they meaningfully review them all? No.  

Author: Jonathan Moseley

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